To link to the entire object, paste this link in email, IM or documentTo embed the entire object, paste this HTML in websiteTo link to this page, paste this link in email, IM or documentTo embed this page, paste this HTML in website

505113.pdf
[35.08 MB]
Link will provide options to open or save document.

File Format:

Adobe Reader

THE LIBRARY OF THE
UNIVERSITY OF
NORTH CAROLINA
THE COLLECTION OF
NORTH CAROLINIANA
C3iiO
N87a ,
1970/72
v.Ul no,3-U
UNIVERSITY OF N.C. AT CHAPEL HILL
00033947178
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
r
Digitized by tine Internet Arciiive
in 2011 with funding from
Ensuring Democracy tiirougii Digital Access (NC-LSTA)
http://www.archive.org/details/northcarolinaatt19711972
^oua;;^^
NORTH CAROLINA
ATTORNEY GENERAL REPORTS
VOLUME 41
Number 3
ROBERT Morgan
ATTORNEY GENERAL
41 N.C.A.G.- No. 3 Pages 420 to 707
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1971 through December 31, 1971
MAILING ADDRESS:
P. O. Box 629, Raleigh, N.C. 27602
ROBERT MORGAN
Attorney General
Harry W. McGalliard
Chief Deputy Attorney General
Ralph Moody
Special Counsel
Jean A. Benoy Andrew A. Vanore, Jr.
James F. Bullock Robert Bruce White, Jr.
Deputy Attorneys General
Carroll Leggett
Special Assistant Attorney General
H. H. Weaver
Special Assistant
Myron C. Banks Parks H. Icenhour
James L. Blackburn I. Beverly Lake, Jr.
William F. Briley Richard N. League
Lester Chalmers James E. Magner, Jr.
H. Al Cole, Jr. William W. Melvin
T. Buie Costen Burley B. Mitchell, Jr.
Christine Y. Denson William B. Ray
Sidney S. Eagles, Jr. " Millard R. Rich, Jr.
Roy Andre Giles, Jr. James B. Richmond
Edward L. Eatman, Jr. Henry Thomas Rosser
Eugene Hafer Jacob L. Safron
Guy A. Hamlin , Howard P. Satisky
Claude Harris / . , Eugene A. Smith
Ladson F. Hart Robert S. Weathers
Charles M. Hensey =<: Robert G. Webb
L B. Hudson, Jr. Thomas B. Wood
Assistant Attorneys General
Thomas E. Kane, Ocean Law Consultant
Herbert Lamson, Jr., Claims Attorney
WilHam F. O'Connell, Federal-State
Relations Consultant
Russell G. Walker, Jr., Revisor of Statutes
B. Hunt Baxter, Jr.
George W. Boylan
Jones P. Byrd
Richard B. Conely
Don A. Davis
Thomas W. Earnhardt
Ernest L. Evans
Ralf Haskell
Rafford E. Jones
Charles A. Lloyd
Louis W. Payne, Jr.
Henry E. Poole
Ronald M. Price
M. Ann Reed
Walter E. Ricks, HI
W. Lewis Sauls
Edwin M. Speas, Jr,
Christine Witcover
Associate Attorneys
OS
=^
Speech by
ROBERT MORGAN
Attorney General of North Carohna
Wake County Bar Meeting
November 3, 1971
It is always difficult for a person, no matter what profession he may
be in, to come before a gathering of his peers and make a speech. This is
especially true when the topic purports to be a fairly scholarly one, such as
mine is today, and when some of you have so much practical experience in
the very area of the law that I will be commenting upon.
Nevertheless, I am pleased to be with you and honored that you would
extend to me another invitation to meet with you. As I indicated, my speech
is in every sense of the word a "lawyer's" speech, not designed necessarily
to entertain but, hopefully, to inform you about one particular function which
my Office performs.
At a time when there is so much talk about consumer protection, the
environment, insurance rates, and anti-trust, I thought it might be refreshing
to choose an area of activity which is not so close to the public spotlight,
yet has a profound effect upon individual citizens throughout our State.
Let me begin by teasing you a little. I wonder how many of you can
tell me what the following people have in common?
*a young man traveling around Eruope in a sports car getting an
"education" while his father gets a tax deduction (or could before the 1969
Tax Reform Act);
*a retired minister in this State - or his widow or orphan - receiving
a monthly check for a bare subsistence;
*a trustee receiving $10,000 a year in this State for opening one letter;
*a hospital in Raleigh receiving a private "grant" to conduct an
experimental program on a cUnic for the poor;
*a trustee sitting in a $500 chair at a large conference table, receiving
over $40,000 a year for going to ten meetings;
*a young, promising adult going to college on a scholarship or loan.
I am sure many of you have guessed that all of these people are
"beneficiaries" in one way or another of charitable trusts - or "private
foundations", as they are called by the Tax Reform Act.
Now you may think that this is a rather narrow area to use as the topic
for a speech to the Bar of tliis County. However, I suspect that many of you
have been connected with charitable trusts in one way or another.
What does all this have to do with the Attorney General's Office.
Surprisingly enough, a great deal.
The Court, in Stemberger v. Tannenbaum, 273 N.C. 658 (1968), stated
that "the State as parens patriae, through its Attorney General, has the common
law right and power to protect the beneficiaries of charitable trusts and the
property to which they are or may be entitled."
The Court went further to quote as authority, Am. Jur. on Charities, which
states: s •
"Because of the pubUc interest necessarily involved in a charitable trust
or gift to charity and essential to its legal classification as a charity, it is generally
recognized that the attorney general, in his capacity as representative of the
State and of the public, is the, or at least a, proper party to institute and
maintain proceedings for the enforcement of such a gift or trust."
North Carolina has reinforced the mandate of the common law by imposing
upon the Attorney General specific statutory duties in the area of charitable
trusts. Article 4 of Chapter 36 of the General Statutes provides that in cases
of mismanagement of charitable trusts, the Clerk of the Superior Court is
required to give notice to the Attorney General or the solicitor who represents
the county. It is then the duty of the one so notified to bring an action,
in the name of the State, for an accounting by the grantees, executors, or
trustees of the charitable fund.
The Attorney General may enforce, by a suit for writ of mandamus, any
transfer for charitable purposes. Should a specific charitable purpose become
illegal, impossible, or impracticable of fulfillment, the Attorney General may,
where the settlor or testator manifested a general charitable intent, apply to
the superior court for an order requiring administration to fulfill the general
charitable intent.
In an action against the trustee of a charitable trust, upon a contract
within his powers as trustee, the plaintiff is required to give notice by mail
to the Attorney General of the existence and nature of the action. Failure
to give the required notice bars enforcement against the trust property of an
ensuing judgment in the plaintiffs' favor. The Attorney General may intervene
in such actions to contest the right of the plaintiff to recover.
The statutes requiring the Attorney General to perform certain duties
^fi relative to charitable trusts should not be construed as limitations upon his
powers. He retains extremely broad statutory and common law powers in this
area and it seems that, at common law:
"Any question affecting a charitable trust may be brought
before the court by information in the name of the Attorney
General."
The Supreme Court of North Carolina seems to have adopted this broad view
in its statement that, where charitable trusts are concerned, "If the Attorney
General is not a necessary party, he surely is a proper party."
It is easy enough to see, therefore, the scope of responsibihty which falls
upon the Attorney General in North Carolina. It is easy enough to see that
public interest requires that the management of charitable trusts be a continuing
concern of our Office.
Regardless, charitable trust is a significant area of the law for me as
Attorney General and for you as members of the legal profession, the public,
and potential beneficiaries for several reasons. Let's look at some of them.
First, charitable trust administration under the 1969 Tax Reform Act is
typical of an area of pubUc concern where, for lack of effective action on
the State level, the federal government stepped in and, in my opinion,
over-reacted.
State Attorneys General, by and large, were not effectively supervising
charitable trusts to prevent the tax dodge; the son-in-Europe example I
mentioned earlier; the once-a-year meeting where already wealthy trustees take
an unconscionably high fee for drinks, dinner and passing out the testator's
accumulated wealth to the alma mater of one trustee; the hospital where the
wife of another does charity work, or to the development of a park across
the road from property owned by another trustee (the value of which
incidentally will be enhanced considerably).
The truth is that the abuses were there; that the states, including North
Carolina, decUned to act; and that the federal government stepped in. I have
said on many occasions that I am a proponent of State's rights but that state's
rights are for responsible states. We can hardly be heard to complain when
we stand by and allow abuse to exist unchecked and the federal government
then decides to legislate in the area.
As is so often the case in such situations, the legislation which evolved
- the Tax Reform Act - took on a punitive cast. Accumulations of income
specifically provided for by the testator, often with the best of intentions,
are now questionable under the new federal law. Malfeasance or nonfeasance
by trustees is punished by penalties and fines directed against the trusts
iii
themselves - a contingency far from the mind of the testator himself. Detailed
IRS reports are required and the Attorney General's Office is the depository
for copies of them.
The federal Tax Reform Act dictated that the North Carolina trust statutes
be amended, taking cognizance of the requirements of the federal legislation.
G. S. 36-23.2 and G. S. 36-23.3 are replete with references to the new Tax
Reform Act.
Already my Office has seen several instances where changes in charitable
trust provisions have been required by the Act, many violating the clear intent
of the testator.
It is significant, I think, thus far the original intent of the testator seems
to have been well intended and not a mere tax evasion technic in the cases
we have had. However, the Office is currently reviewing the operations of several
trusts in this State which show signs of in-breeding. The same personnel estabUsh
and administer the trust; they hold assets and income rather than distributing
them for charitable purposes. Thankfully these are a small minority.
It is regretful that Congress approached tax reform with such a broad
brush. It seems that from the beginning they adopted the notion that the whole
barrel must have been spoiled by a few bad apples and proceeded to enact
legislation which frustrated the legitimate intent of many testators.
Second, charitable trusts is an area which is typical of the Attorney
General's common law authority supplemented by statutory powers to act as
attorney for the general public. In the Kate Reynolds case, where cy pres was
recently allowed by the Supreme Court, my Office represented charity patients
in hospitals around the State and any potential charity patient or person in
need of health care who could not afford it.
In the Turrentine estate matter, in which my Office is currently involved
in federal court in the District of Columbia, I represent students who would
receive scholarships and loans for attending the University of North Carolina
where the trust is under attack because it provided for white students only.
More broadly, my representation in the Duke Endowment case is of Duke
himself since we are opposing the request for change by the trustees, and the
citizens of North Carolina have a continuing interest in the welfare of the Duke
Endowment and the continuation of the investment of the Endowment's vast
resources within this State.
I want to make may position is these cases clear, however. The trustees
have a duty to uphold the trust and administer it as directed. If they come
into court asking for some change in the administration of che trust, unless
I am convinced beyond all doubt that there is no justification for the
administration of the trust as directed by the testator, I will oppose the cy
pres request. In short, if the trustees bring the Attorney General into the suit,
they can expect to have an active adversary.
Do not mistake my intent by this adversity. Just as I do not necessarily
reject the notion that North Carolina needs an increase in insurance or utility
rates by my active opposition of those actions, I do not reject the notion
that cy pres is very often proper when requested by trustees. My posture in
opposition is taken in the hope that the Court will be presented with all sides
of the issues, with evidence that will support several conclusions and, where
warranted, will provide an appeal in which something is really at stake for
decision by the Court.
The responsibihty of the charitable trustee is awesome. Allowed to exist
in perpetuity, charitable trusts must be administed with flexibihty to carry
out well in modern society the intent of a testator who may have died nearly
fifty years ago (as did James B. Duke).
Such trusts are the intermediaries between those who were or are willing
to share their wealth and with the beneficiaries, usually some large segment
of the general public. Trustees, in a very real sense, hold the assets in trust
for the public and largely tax-free. Therefore, there is a special responsibility
upon the trustees - and a special responsibility upon the Attorney General of
this State.
As your Attorney General, I take this responsibility seriously.
Speech by:
ROBERT MORGAN
Attorney General of North Carolina
National Association of Real Estate
Law Licensing Officials
November 8, 1971
I welcome a chance to tell you about some of the things we are doing
in North Carolina and to share with you my philosophy of licensing boards
in general.
I think I should tell you at the beginning that I am very jealous of
individual rights. Our society is rooted in the precepts of dignity, integrity
and liberty of the individual. I wouldn't have it any other way and I don't
think you would either.
Such a society, emphasizing the principle of personal liberty and embracing
the right of every citizen to the enjoyment of the fruits of his own labor,
consequently, has certain responsibilities to its citizens. Let's look at two of
them.
First, it must provide for them those services that they cannot very well
provide for themselves: schools, roads, medical care and facilities, medical care
for the mentally ill, and the mentally retarded. I was a State Senator for twelve
years and it was primarily to this responsibiUty that I devoted my efforts.
Second, it must guarantee to the citizens of the State personal liberty
and freedom, which embraces more than protection from the unlawful acts
of others, but the right of the individual to be free to enjoy the faculties
v^th which he has been endowed by his Creator - to live and work where
he will, to earn his livelihood by any lawful calling, and to pursue any legitimate
business, trade or vocation.
It is to this second responsibiUty that I turn my attention today and,
frankly, I must admit I am concerned by the direction of our government
in this area.
It has become increasingly apparent to me that we have forgotten one
of the key reasons why many of the early settlers of this Country made the
long and perilous journey to these shores. It is easy enough for most of us
to remember that religious persecution drove men like Roger Williams and
William Penn to seek a new life here in America. It is easy enough to remember
that the desire for wealth and personal fortune inspired Queen Isabella to
finance the voyage of Columbus to the New World and prompted Elizabeth
to sponsor the expedition of Sir Waher Raleigh.
VI
However, we have allowed ourselves to forget that many persons whose
niames are not found in the index of American history books came to America
for a far more elemental reason. Untold numbers, simple people with a simple
desire, came in order to pursue the livelihood of their choice by escaping the
oppressive and exclusive guild system which controlled the professions in
England and on the Continent.
This is unfortunate for it appears that this "memory lapse" may account
for the great volume of professional licensing legislation being enacted in every
state of this nation, bringing us closer and closer to an officially sanctioned
American guild system. I know that this is true in my State and every time
a new bill is presented, the argument is the same: the profession is susceptible
to fraud and dishonesty; therefore we must license those who practice it.
I ask you, "What profession is not?" It is obvious that every one is
and equally obvious that no matter how desirable it is to protect our people
P from fraud and dishonesty, we cannot undertake to license and regulate every
occupation for there is no business or occupation which is not likely to have
'its quota of dishonest men.
The right to work and earn a livelihood is a property right that may
not be lawfully denied except under the poUce power of the State in the pubUc
interest for reasons of health, safety or public morals. It follows, then, that
the right to Ucense and regulate is an extraordinary power of the State, and
the limits of police power are exceeded when the government undertakes by
regulation to rid ordinary occupations and callings of the morally decadent.
The answer to fraud and dishonesty in ordinary businesses is not to
continue extending the licensing power of the State but to provide criminal
and civil laws to protect the public from unfair and deceptive trade practices
and to provide effective legal machinery for enforcing these laws. We have in
North Carolina an aggressive Consumer Protection Division. This is the way
of the future, I think, - responsible, reahstic, but vigorous enforcement of
reasonable laws designed to protect the consumer and the legitimate
businessman.
It is important to pause for a moment and to state unequivocally that
I beheve the hcensing of real estate salesmen and brokers is a legitimate function
of the State. The profession you seek to regulate is clothed with a substantial
public interest and must be regulated for the purpose of protecting and
promoting the general welfare of the people.
The business of acting as intermediary between seller and purchaser in
real estate transactions, the business of a real estate broker or salesman, is
a lawful business or calUng, and any one has a right under the constitutional
guaranties of hberty and pursuit of happiness to follow it. Nevertheless it is
a business which may be conducted in such a manner as to promote an
vii
undesirable state of local, economic excitement and unrest; which may easily
result in a degree of pubUc distress analogous to that produced by
mismanagement of a banking institution. The real estate broker is brought by
his calHng into a relation of trust and confidence. Opportunities to extract
illicit gains by concealment and collusion are constantly available and licensing
authorities such as you must be just as constantly vigilant and ready to move!
against those who violate their public trust.
What, then, is the future of real estate licensing, conceded by all of us
to be a legitimate exercise of the State's licensing power? Perhaps the answer
lies to some degree in its history and the history of some other licensing board.
Historically some licensing boards, not necessarily real estate, have been I
used by persons already in the profession as a guise to exclude new persons
from joining the profession and thus controlling competition.
As of October 19, 1971, there were 9,400 licensed real estate brokers
in North Carolina and 2,807 salesmen for a total of 12,207 licensees. Between
September 1970 and September 1971, 2,185 persons took the broker's
examination; of these 68% passed and 32% failed. During this same one-year
period, 1,421 persons took the salesmen's exam. Of these, 70% passed and
30% failed.
These figures indicate to me that the North Carolina Real Estate Licensing
Board is not following a practice of trying to exclude persons from entering
the real estate profession.
On the other hand, figures published by the National Association of Real
Estate Law Officials for the period from June 30, 1970, through
June 30, 1971, indicate that the licensing boards in ten states failed more than
half of the applicants for brokers' licenses and that in five states more than
half of the appUcants for a broker's license also failed to pass the examination
during this same period.
It is hard to draw the line, but my personal view is that if more than
half of the applicants taking the brokers' and salesmen's exams are not passing
the examination, something is wrong. Either the licensing board is trying to
exclude others from entering the profession or the educational program available
to prospective licensees is not adequate; or perhaps both of these factors are
playing an important part in the unfortunate end result.
We live in a day when the protection of civil Uberties has become
increasingly a matter of wide public concern. Licensing boards which arbitrarily
exclude persons from their profession without due regard to the public interest
which they are authorized to protect may expect to find themselves as
defendants in civil suits primarily in the federal courts. And they may expect
to be the losers - and rightfully so.
— In the future licensing boards of every kind should turn their attention
viii
ict
o "inclusion" rather than "exclusion" and work to find ways to accomplish
his. I am pleased that North Carolina has taken steps in this direction.
I have mentioned educational opportunities for prospective brokers and
alesmen. In my opinion, it is incumbent upon licensing boards to foster good
iducational programs for prospective licensees. In fact, North Carolina law
requires that an applicant for a license as a real estate broker shall have been
ictively engaged as a Ucensed real estate salesman in his state for at least six
; nonths prior to making application for a license as a broker or that he shall
J
i"urnish evidence satisfactory to the Board of experience in real estate
ransactions or the completion of a study or a combination of experience and
;tudy of real estate transactions which the Board shall find equivalent to six
jTionths' experience as a licensed salesman.
Within the last few years. North CaroUna has established a system of
:ommunity colleges throughout the State and 24 of these community colleges
now offer courses in real estate which are approved by the Licensing Board,
jlhere are 25 private schools which also offer approved courses in our State.
We are proud that we have 49 courses available to prospective licensees, and
[ hope that those of you here today will foster educational opportunities for
prospective licensees in your State.
That a good education in real estate is essential to a broker or a salesman
'has been proved time and again in North CaroUna. The Office of the Attorney
General is legal counsel to the Licensing Board. During the past year, our Board
has revoked two licenses, has suspended three, and has held approximately 75
ijinformal hearings on complaints filed against licensees.
These hearings vividly illustrate that in many instances a licensed broker
;|or salesman simply is ignorant of what the law requires of him in coimection
'with real estate transactions. These hearings have also vividly demonstrated that
in a majority of cases, it is not the new licensee who is ignorant of the law
but persons who have been in the profession for many years, frequently those
practicing under the "grandfather clause". The point is obvious - not only must
educational requirements be strengthened prior to licensing, but continuing
education of those already in the profession is a necessity.
In March of 1970, the North CaroUna Real Estate Licensing Board started
publishing a quarterly bulletin. It is sent to all Ucensed brokers and salesmen
and is designed primarily as an educational publication for those already in
the field.
For instance, in the first issue, there was an article on "Truth in Lending"
and advertising of real estate credit. The first issue also contained an article
on the revised form of real estate licenses. Included were relevant opinions
of the Attorney General interpreting the North Carolina licensing law and any
(changes in the law made by the General Assembly.
Interestingly enough, the bulletin also contains articles about disciplinary
action taken by the Board against licensees. The Board hopes that licensees
will think twice before deliberately violating the law if they know that any
action taken against them will be made known to all other licensees in the
State.
This bulletin is a practical and effective means of continuing education.
But continuing education requires money. In North Carolina, the Licensing
Board is self-sustained and receives no funds whatsoever from the State. I
imagine that the same is true in most of the other states. Fortunately, in North
Carolina the Board has had sufficient funds to adequately carry on its statutory
duties and responsibilities.
The Board, reaUzing the need of continuing education, requested the 1971
Session of the North Carolina General Assembly to broaden its authority with
reference to continuing education. The Legislature granted such authority and t
the Board is now authorized to expend expense reserve funds, and, I quote,
"... for the purpose of conducting education and information programs relating
to the real estate brokerage business, for the information, education, guidance
and protection of the general public, licensees, and applicants for license. The
education and information programs may include preparation, printing and!
distribution of publications and articles, and the conduct of conferences,
seminars, and lectures."
You will note that in the quotation I just read there appeared the words
"for the purpose of ... protection of the general pubUc. . .
."
As I have said before, it is absolutely essential that all licensing boards,
including real estate licensing boards, keep as their primary purpose the
protection of the public. Licensing boards should never be used to limit those
entering the profession, to foster a guild system, to raise revenue, or to assert
poUtical power and influence. I am not suggesting that all Ucensing boards have!
been used in this manner, but clearly some have and all are susceptible to I
such misuse.
I believe that you have such support today, and, in order to maintain!
it, I urge you to continue to foster programs that will protect the public through
the competence and integrity of your licensees.
I urge you to so conduct your business that there can never be any question
that all qualified persons can be admitted to the real estate profession andi
allowed to practice this profession if they so desire. I urge you to be fair
and, just as importantly, to make sure the public perceives what you are doing
as being fair. This is the key to public confidence and support and the key
to a bright future for real estate licensing boards.
TABLE OF CONTENTS
ABC Act; Beer; Possession; Restrictions on
Possession by One Who is Not Owner 573
ABC Act; Beer and Wine; Effect of G. S. 18A '
Upon the Sale of Fortified Wines in
Cumberland County, a Dry Area; Authority
of State ABC Board to Issue Fortified
Wine Permits 616
Act; Beer and Wine; Regulation of Sale in
Rockingham County; G. S. 18A-33; Chapter
1076, Session Laws of 1945; Chapter 918,
Session Laws of 1947; G. S. 18A-38 607
ABC Act; Beer and Wine; Sale; Regulation by
Counties and Municipalities 484
ABC Act; Beer and Wine; Transportation and
Sale by Wholesaler on Sunday; Authority
of State Board 704
ABC Act; Board of AlcohoUc Control, Local;
Powers With Regard to Employment of ABC
Officers; Requirement of Expenditure of
Percentage of Total Profits for Education
and Rehabihtation 610
ABC Act; Permits; Discretion of State Board
of AlcohoUc Control in Issuing 505
ABC Act; Wine; Sale; Authority of Local ABC
Board to Restrict Wine Sales 630
Administrative Law; Employment Security Commission;
Filing of Claims and Claim Procedure; Practice
of Law by Laymen, Consultant Associations and
Corporations Before the Commission and Its
Hearing Officers and Agents; Authority of
Laymen, Associations and Consultant Corporations
to File Separation Notices, etc. 650
Agriculture; Bread Products; Arfificially Colored
Shortening Chips in Refrigerated Dough
Biscuit Products; G. S. 106-225.3 674
Agriculture; Public Records; Compulsory Meat
Inspection Act; G. S. 132-1, 106-549.5
et seq. 468
Claim and Delivery; Clerks of Court; Magistrates;
Justification of Defendant's Sureties;
G. S. 1-479 628
Conservation and Development; Fishing Laws;
Authority of Local Government to Regulate
Fishing in Coastal Fishing Waters
Counties; Commissioners; Filling of Vacancy;
Appointment for Unexpired Term; G. S. 153-6
Counties; Contracts; Lease of Equipment with
Option to Purchase; Competitive Bidding
Requirements
Counties; Contracts; Purchase of Apparatus
and Equipment; Single Bid
Counties; Sand Dune Protection; Authority of
a County to Protect the Sand Dunes Along
the Outer Banks in the Entire County,
Including Any Municipality Located Therein
Courts; Clerk of Superior Court; Mental Patients;
Release of Information to Clerk
Courts; Clerk of Superior Court; Vacancies;
Term of Office
Courts; Clerks of Superior Court; Costs; Bail,
Bail Bonds; G. S. 7A-308(15); Commission
by Clerk Superior Court on Interest Earned
by Posted Cash Bond
Courts; Judges; District Court; Authority to "
,
Dispose of Juvenile Cases
Courts; Juveniles; Detention of Delinquent or
Undisciplined Children Prior to Hearing
Courts; Juveniles; Mental Hospitals; Centers
for the Mentally Retarded; Commitment of
Juveniles
Criminal Law & Procedure; Appeals by State
Criminal Law & Procedure; Miranda Waming;
Motor Vehicles
Criminal Law & Procedure; Nolle Prosequi; Powers
of the Court With Regard to Same; Continuances;
Time of Granting
Criminal Law & Procedure; Paroles; Parole of
Convict Committed to Hospital for the
Mentally 111; G. S. 122-85
Criminal Law & Procedure; Search and Seizure;
Search Warrants
Criminal Law & Procedure; Weapons; Educational
Property; Applicability to Forest Lands
Owned or Controlled by Universities;
G. S. 14-269.2 539
Criminal Law & Procedure; Weapons; Firearms;
Federal Firearms Act of 1968; Criminal
Justice Planning Units; Exempt Transfers;
18 USCA 925 and 26 USCA 5853 568
Criminal Law & Procedure; Weapons; G. S. 14-269.2;
Education; School Law, Generally; Possession of
Weapons by Faculty Members of Schools in Homes
of Faculty Members Located on School Property 466
Education; Colleges and Universities; Qualifications
for In-State Tuition; Chapter 845 of the 1971
Session Laws 445
Education; Community Colleges; Interpretation of
Bond Resolution; Expenditure of Bond Funds 682
Education; ConsoUdation; Effect of the
ConsoUdation of These Two School Units
Upon the Term of Office of the Member of the
School Board Which Would Otherwise Become
Vacant in 1972 644
Education; ConsoUdation; Effect of Merger of
Two School Administrative Units Upon Order
of the Federal Court Assigning Pupils and
Upon Plan Adopted and Approved by HEW for
Assignment of Pupils 648
Education; County and City Boards of Education;
Authority of Local Board of Education to
Promulgate Rule Releasing Students Sixteen
Years and Older Who Need Two or Three Courses
for Graduation After Noon For Non-School-Related
Employment 689
Education; Sale or Lease by County or City Board of
Education of Abandoned Real Property to a
Municipality; G. S. 160-61.2 597
Elections; Executive Secretary of County Board
of Elections; A Member of the County Board
of Elections May Not Serve as Executive
Secretary to That Board 577
Health; Eighteen-Year-Olds; Consent for
Treatment 489
Infants and Incompetents; Custody; Jurisdiction
of State Courts Over Federal Reservation 580
Infants and Incompetents; Guardians; Joint
Savings Accounts; Right of Guardian to
Remove Funds From Savings Account in Which
Guardian's Ward Has a Contractual Right to
Withdrav/ Funds 461
Infants and Incompetents; Guardians; Minors;
Clerks of Superior Court; G. S. 33-1, 33-41;
Chapter 585, 1971 Sessions Laws (G. S. 48A-1,
48A-2) 450
Infants and Incompetents; Minors; Mental Health;
Voluntary Admissions to State Hospital;
Abortions 517
Infants and Incompetents; Minors; Public Officers
and Employees; Clerks of Superior Court;
Sheriffs; Issuance of Permit to Purchase
Weapon to 18, 19 and 20-Year-Old Persons; ;i :
G. S. 48A-1, 48A-2; G. S. 14-402, et seq. 465
Jails; Training of Persons Supervising a
Jail : - ::>:-: 603
Labor; Minimum Wage Act; Amendment to G. S. 95-87;
Part Time Employees Working Sixteen Hours or
Less Per Week in Estabhshment Having Three
or Less FuU Time Employees; Counting Employees
for Basic Coverage Under the Minimum Wage
Act ' 438
Licenses & Licensing; Plumbing and Heating
Contractors; Submission of Bid as Engaging
in Plumbing and Heating Contracting;
Penalties 673 I
Licenses & Licensing; Private Detectives;
Requirement for Licensing and Bond;
Article 9A, G. S. 66 552
Licenses & Licensing; Professional Engineers
and Surveyors; Unlawful Use of Seal 423 '
Licenses & Licensing; Real Estate Licensing
Board; Licensing North Carolina Residents
Who Become Non-residents; Reciprocity;
G. S. 93A-4 and G. S. 93A-9 531
Marriage and Divorce; Divorce; Jury Trial;
Waiver Pursuant to G. S. 50-10 in Cases
Involving Personal Service 473
Mental Health; Commitment to State Mental
Institution; Waiver of Hearing Before Clerk 564
Mental Health; Courts; Responsibility for
Transporting Mental or Inebriate Patients
to Hospitals 457
Motor Vehicles; Bumper Specifications; Private
1^1 Passenger Automobiles; G. S. 20-135.4 677
Motor Vehicles; Drivers
ResponsibiUty Act of 1953; Hearings 420
Motor Vehicles; Drivers
Driving Privilege
I
Motor Vehicles; Drivers
Driving Privilege
Motor Vehicles; Drivers
Driving Privilege;
Motor Vehicles; Drivers
Licenses; Financial
Licenses; Limited
535
Licenses; Limited
706
Licenses; Limited
Permit; G. S. 20-179 659
Licenses; Restricted
Driving Privileges; G. S. 20-179(b)(l) 596
Motor Vehicles; Nonresident Defendants; Service
of Process on Commissioner of Motor Vehicles;
Acceptance of Service 567
Motor Vehicles; Pedestrians Soliciting Rides,
Employment, Business or Funds Upon Highways or
Streets 528
Motor Vehicles; Taxicabs; Marking Under
G. S. 20-101 Not AppUcable to Taxicabs 547
Municipalities; Building Code; Plumbing Code;
Master Plumbers 477
Municipalities; Contracts; Inclusion of Sales
Tax as "Expenditure of Public Money";
G. S. 143-129; 105-164.7; 105-164.14(c) 479
Municipalities; Police; Special Policemen;
Jurisdiction of Morehead City Police on
State Property Within City Limits; North
Carolina State Ports Authority; Authority of
Town of Morehead City to Legislate by
Municipal Ordinance Within Geographical Area
Owned by Ports Authority 433
Pollution; Air Pollution Control Program, Local;
G. S. 143-215.3(aXll); Responsibility for
Prosecution of Violations of Local Air
Pollution Ordinances 519
Prisons and Prisoners; Hard Labor as Punishment
Prohibited; Prisoners May Be Employed 440
Prisons and Prisoners; Parole; Citizenship
Restored . 426
Public Officers & Employees; Conflict of
Interest; County Commissioner's
Authorization of Food Stamp Program in
County Where Two Commissioners Are
Merchants Who Could Derive Benefit from
the Program . 530 i
Public Officers & Employees; County Social '
j
Services; Salary of County Director;
Apphcability of State Persormel Act;
Authority of Board of County Commissioners » 696
Pubhc Officers & Employees; Double Office
Holding; Constitutional Construction;
G. S. 128-1.1; Article VI, Section 9,
North CaroUna Constitution; U. S. Postal «
Employees 633
PubUc Officers & Employees; Holding Over; State
Board of Assessment; G. S. 105-288 458
Public Officers & Employees; Notaries Public;
Fees; Form of Seal, Oath of Office; Persons
18 Years of Age May be Notary 435
PubUc Officers & Employees; Register of Deeds;
Appointment of Assistant or Deputy Registrar;
Person 18 Years of Age or Over May be
Appointed as Deputy or Assistant Register
of Deeds 476
Public Officers & Employees; State Employees;
Workmen's Compensation Act; Travel by
Private Plane 464
Public Officers & Employees; University of
North Carolina, Board of Governors;
Officers and Employees of State Not
EUgible To Serve; G. S. 116-7 623
Rules of Civil Procedure; Rule 27(b); Clerk's
Authority to Order Deposition to Prepare
a Complaint 618
Rules of Civil Procedure; Verification of
Complaint; Default Judgment; G. S. 1-75.11 625
Social Services; Adoption of Minors; Effect of
Statutory Change in Definition of a Minor 599
Social Services; Aid to Famihes With Dependent
Children; Payments on Behalf of Persons Who Are
Over Eighteen Years of Age and Who Are
Undergoing a Course of Study or Training 593
Social Services; Family Assistance Program;
Contracts for the Handling of the Family
Assistance Program , 698
Social Services; Medical Assistance; Frequency
of Payments by the State; Reimbursement by
the County for Their Share of Medical
Assistance Costs 615
Social Services; Medical Assistance; Nursing
Home Services Provided by Hospitals; North
CaroUna Appropriations Act of 1971;
AppUcability of the Limitation of "Allowable
Costs Up to $14.00 Per Day" 541
Social Services; Mental Institutions; Legal
Settlement 472
Social Services; Nursing Homes; County Fiscal
Control Act; Requirements for Identifying
Nature of Payments 557
Social Services; Nursing Homes; Social Security
Act; Medical Assistance, Counties and
County Commissioners; Guaranteeing of
AvailabiUty of Beds 555
State Departments, Institutions & Agencies;
Capital Building Authority; Department of
Administration 421
State Departments, Institutions & Agencies;
Correction, Department of; Police Protection 582
State Departments, Institutions & Agencies;
Credit Reporting; AppUcation of Fair
Credit Reporting Act to State Agencies 654
State Departments, Institutions & Agencies;
Mental Health; Consent for Medical Treatment;
Provisions of G. S. 110-20.1 Regarding
Exhibition of Certain Children and Television
Coverage 590
State Departments, Institutions & Agencies;
Mental Health; Cost of Care and Treatment
of Inmates; Parental Liability 507
State Departments, Institutions & Agencies;
Mental Health; Costs of Care and Treatment
of Inmates; Parental Liability; Eighteen-Year-Olds 662
State Departments, Institutions & Agencies; Mental
Health; Liability of Inmate of State Mental
Hospital for Cost of Care, Treatment and
Maintenance
State Departments, Institutions & Agencies;
Mental Health; Suspended Sentences; Liability
of Inmate for Cost of Care and Treatment
State Departments, Institutions & Agencies;
Natural and Economic Resources, Department
of; Title VIII - Housing Act of 1964;
Community Development Training Program;
G. S. 143A-128
State Departments, Institutions & Agencies;
Ports Authority; Contractual and Tort
Liability; Liability Insurance
State Departments, Institutions & Agencies; ^
Reorganization; Executive Organization
Act of 1971; Continuation of Statutory
Exemption of Certain State Employees From
the State Persormel Act
State Departments, Institutions & Agencies;
Reorganization; Secretary of State;
Transfer of the State Board of Elections
by a Type II Transfer to the Dept. of the
Secretary of State; Powers & Duties of the ;
Secretary of State; Article 2 of Ch. MSA
of the General Statutes
State Departments, Institutions & Agencies; , ,
Tort Liability; North Carolina State Ports
Authority; Liabihty Insurance
State Departments, Institutions & Agencies;
Zoological Authority; Real Property;
Responsibility of Department of Administration
With Respect to Real Property in Which
the N. C. Zoological Authority Has an Interest
Streets and Highways; Highway Fund; License
Plates; Use of Funds From Sale of Personalized
License Plates
Streets and Highways; Municipalities; Powell
Bill Funds; Expenditure for Drainage
Purposes
Streets and Highways; Paving of Driveways to
- Rural Fire District Firehouses; State
Highway Commission
%
Streets and Highways; State Highway Fund;
Municipalities; Powell Bill Funds;
G. S. 136-41.1 as Amended by Chapter 182,
1971 Session Laws 518
Streets and Highways; State Property; Closing
Public Streets in Butner 576
Taxation; Ad Valorem; Bank Vault Doors, Vault
Ventilators, Safe Deposit Boxes, Night
Depositories, Drive Up Windows of Banks 558
Taxation; Ad Valorem; Change in Valuation;
Power of Tax Supervisor After Board of
Equalization and Review Adjoums;
G. S. 105-325(aX6); G. S. 105-325(b);
G. S. 105-2960) 514
Taxation; Ad Valorem; Collection; Levy on
Merchant's Personal Property Transferred
Before Payment of Tax; Personal Liability
of Purchaser; G. S. 105-366(d) 482
Taxation; Ad Valorem; Collection of Taxes;
Tax Liens; Limitation of Actions;
G. S. 105-422 431
Taxation; Ad Valorem; Execution; Description
of Property in Execution; G. S. 105-392 427
.Taxation; Ad Valorem; Exemptions; Real Property
Belonging to Non-profit Medical Foundation;
G. S. 105-278 (Formerly G. S. 105-296 - See
Chapter 806, Session Laws of 1971, New Machinery
Act) 455
Taxation; Ad Valorem; Exemptions; Real Property;
Building Owned by Nonprofit Medical Development
Authority and Leased to Private Practitioner
Doctors; G. S. 105-278; Medical Care
Commission Hospital Facilities Finance Act,
G. S. 131-140, G. S. 131-158 583
Taxation; Ad Valorem; Liens; Motor Vehicles;
Priority of Ad Valorem Taxes Over Prior
Perfected Liens and Security Interests 692
Taxation; Ad Valorem; Public Service Companies;
Broadcast Stations; State Board of
Assessment; G. S. 105-333(1) 702
Taxation; Ad Valorem; Situs; Cars Used by
Executives of Corporation; G. S. 105-304(h)(2) 688
Taxation; Ad Valorem; Tax Collectors; Appointment
of Tax Collectors; Effect of Local Acts;
G. S. 105-349 and G. S. 105-395(c)
Taxation; Ad Valorem; Waiver of Interest;
G. S. 105-355(a)
Taxation; Gasoline Tax; Refunds; Redevelopment
Commissions; G. S. 105-446.1
Taxation; Inheritance Tax; Exemptions,
Great-Grandchildren; G. S. 105^
Taxation; Privilege License Taxes; City Ordinance
Imposing License Tax on Storage Warehouses
Taxation; Privilege License Tax; Going Out of
Business License Tax; G. S. 160-56
Taxation; Real Estate Excise Stamp Tax;
Consideration; Conveyance of Real Property
in Exchange for Reciprocal Conveyance of
Real Property; G. S. 105-228.29
Taxation; Real Estate Excise Stamp Tax; Voluntary
Partitions of Realty; Exchanges of Realty;
G. S. 105-228.28, G. S. 105-228.29,
G. S. 105-228.30 and 1971 Treas. Reg.
§ 47-4361 -2(bX7)
Taxation; Refund of Taxes; Statute of Limitations;
G. S. 105-266 and G. S. 105-155
Taxation; Sales & Use Tax, County; Distribution
of Proceeds to Municipalities; Pinehurst;
G. S. 105-472
Taxation; Sales & Use, State; Exemptions; Crushed
Stone; Sand; G. S. 105-164.13(3)
Water Resources; Contracting Debt for Authority
of State and Local Govemment
1 July 1971
ubject:
Lequested by:
Question:
Conclusion:
Motor Vehicles; Drivers' Licenses; Financial
Responsibility Act of 1953; Hearings
Senator Clyde Norton
Under the recent U. S. Supreme Court
Opinion in Bell v. Burson (No. 5586,
Decided May 24, 1971), must the
Financial Responsibility Act of 1953
(G. S. 20-219A et seq.) be amended to
provide hearing on the question of liability
prior to suspension of operator's hcense in
order to comply with constitutional
requirements of due process?
Due to the inconclusiveness of the Supreme
Court opinion and differences between the
North Carohna Act and the Georgia Act,
it appears that our method of judicial
review would probably comply with the
requirements stated by the court.
G. S. 20-279.2 requires the Commissioner of Motor Vehicles to
"provide for hearings upon request of persons aggrieved by orders
or acts of the Commissioner under the provisions of this article."
No hmit is set upon the procedure of the hearing. Apparently,
Georgia hmited its administrative hearing, refusing to consider the
issue of UabiUty.
While Georgia provided for immediate judicial review, the fiUng of
a petition for such review did not "act as a supersedeas of any
orders or acts of the Director." Bell v. Burson, supra, (page 3, fn
1). In North Carolina, the filing of a petition for judicial review
acts as a supersedeas and petitioner may continue to drive until
disposition of the action upon its merits against petitioner's interest
and similar disposition of any appeal to the Appellate Division. See
G. S. 20-279. 2(b). Liabihty is an issue in this judicial review. See
G. S. 20-279.2(b).
-420-
In Bell V. Burson, supra, (p. 4) the court suggested alternative
methods of compUance with constitutional requirements to Georgia,
saying:
"We hold, then, that under Georgia's present statutory
scheme, before the State may deprive petitioner of his
driver's Hcense and vehicle registration, it must provide
a forum for the determination of the question whether
there is a reasonable possibiHty of a judgment being
rendered against him as a result of the accident. We
deem it inappropriate in this case to do more than
lay down this requirement. The alternative methods
of compliance are several. Georgia may decide merely
to include consideration of the question at the
administrative hearing now provided, or it may elect
to postpone such a consideration to the de novo
judicial proceedings in the Superior Court."
It appears that our method of judicial review would probably comply
with one alternative suggested by the court.
Robert Morgan, Attorney General
T. Buie Costen,
Assistant Attorney General
1 July 1971
Subject:
Requested by:
Questions:
State Departments, Institutions &
Agencies; Capital Building
Authority
;
Department of
Administration
Mr. Carroll L. Mann, Jr.
State Property Control and
Construction Officer
(1) Does the Department of
Administration per se come within
-421-
the jurisdiction of the North
Carolina Capital Building Authority?
(2) Do all other State agencies and
institutions whose governing or
controlHng body is located in
Raleigh come within the jurisdiction
- ' of the North Carolina Capital
Building Authority?
Conclusions: (1) Yes. G. S. 129-42.1 excludes
only the North Carolina State
University and Dorothea Dix
Hospital from the jurisdiction of the
North CaroHna Capital Building
Authority, for planning and
construction of capital improvement
projects in the City of Raleigh and
its environs by all State agencies and
institutions.
(2) Yes. However, with the
exception of those State agencies
and institutions specifically listed in
G. S. 129-42.1 and those which by
choice elect to come under its
authority, the Capital Building
Authority has jurisdiction only of
planning and construction of capital
improvement projects in Raleigh and
environs by State agencies.
The original authority of the North CaroHna Building Authority
granted by Chapter 994 of the 1967 Session Laws extended only
to capital improvement projects in the City of Raleigh and its
environs constructed by State agencies. 40 NCAG 732. Chapter 1 12
of the 1969 Session Laws amended G. S. 129-42 to add "and all
other State agencies which may be brought under this article or
which may come under this article by choice."
Chapter 112 of the 1969 Session Laws also added G. S. \29A2.\
All-
which provides in part as follows: "The North Carolina Capital
Building Authority shall exercise those powers and duties set forth
in G. S. 1 29-42 for the following agencies and institutions of the
State of North Carolina and any other State agency or institution
which may come under this article by choice and upon notification
to the authority in writing: the North Carolina Department of
Correction, the North Carohna School for the Deaf, the Eastern
North Carolina School for the Deaf, the Governor Morehead School,
the North Carolina Department of Motor Vehicles, the North
Carolina Sanatorium System. . .and all State agencies in the City
of Raleigh and its environs with the exception of North Carolina
State University and Dorothea Dix Hospital." (Emphasis added.)
Chapter 112 of the 1969 Session Laws extended the power and
duties to include the specific agencies and institutions enumerated
and to allow other agencies and institutions to avail themselves of
its services. 40 NCAG 732. Although the governing bodies of the
Department of Correction and the Department of Motor Vehicles
are located in Raleigh, it is apparent they were specifically included
for the purpose of granting jurisdiction for the planning and
construction of capital improvements by these agencies constructed
outside of Raleigh and its environs as well as inside Raleigh.
G. S, 129-42.1 excludes from the jurisdiction of the North Carolina
Capital Building Authority over planning and construction of capital
improvements in Raleigh and its environs only North Carolina State
University and Dorothea Dix Hospital. Therefore, the Department
of Administration comes within the jurisdiction of the Capital
Building Authority.
Robert Morgan, Attorney General
Eugene A. Smith,
. Assistant Attorney General
12 July 1971
Subject: Licenses & Licensing; Professional
Engineers and Surveyors; Unlawful Use of
Seal
-423- ;
Requested by: ^ Mr. B. A. Saholsky, Exec. Sec.
N. C. State Bd. of Registration for
Professional Engineers and Land Surveyors
Question
:
What is the extent of supervision required
of a registrant to enable him to legally seal
and sign plans prepared by others without
violating G. S. 89-10?
Conclusion: The extent of supervision is not prescribed
by G. S. 89-10; however, the supervision
must be direct - meaning a person
employed by and under control of the
registrant.
G. S. 89-10 provides that: "It shall be unlawful for any registrant
to stamp or seal with said seal any documents other than those
'prepared by, or under the direct supervision of the registrant
.^^
{Emphasis added) G. S. 89-10 does not prescribe the extent of the
supervision required. However, it does prescribe that the supervision
must be direct.
"Direct" is defined by Webster's Seventh New Collegiate Dictionary
as being marked by the absence of an intervening agency,
instrumentality, or influence. It states that "direct suggests an
unbroken connection or a straight bearing of one upon or toward
another." It is the opinion of this Office that the phrase "under
the direct supervision of" as used in G. S. 89-10 contemplates a
person who is employed by the registrant and who is under the
direct control of the registrant.
Robert Morgan, Attorney General
James E. Magner,
Trial Attorney
12 July 1971
Subject: Criminal Law & Procedure; Search and Seizure
Search Warrants
-424-
Requested by: The Eden Police Department
Question: When one police squad is at the back door of
a house with a vahd search warrant and another
squad, without a warrant, enters the front door
before the squad at the back door gains entrance,
is the evidence obtained as a result of the search
admissible in court?
Conclusion: No.
i
G. S. 15-27(a) provides: "No evidence obtained by means of an
illegal search shall be competent as evidence in any trial."
It appears from the facts that the officers who entered the house
first made no demand for entrance. G. S. 15-44 provides
circumstances under which a law enforcement officer may break j
and enter into houses: "If a felony or other infamous crime has!
been committed, or a dangerous wound has been given and there
is reasonable ground to believe that the guilty person is concealed
in a house, it shall be lawful for any sheriff, coroner, constable,
or police officer, admittance having been demanded and denied, to
break open a door and enter the house and arrest the person against
whom there shall be such ground of behef.
" Since the requirements
of the statute were not met in our factual situation, the entry by
the officers was forbidden and any evidence seized by the officers
would be subject to the exclusionary rule of G. S. 15-27. In
discussing the "demand" requirement of G. S. 15-44, the court, in
S. V. Covington, 273 N. C. 690, said that compHance with the
requirement "is for protection of the occupant and the recognition
of his constitutional rights."
The facts presented indicate that the officers walked through an
open front door. In S. v. Howard, 274 N. C. 188, the court offers
dictum which indicates that where no forcible entry is made, the
provisions in G. S. 15-44 do not apply. However, in S. v. Howard,
the officer saw "suspicious objects in plain sight" through an open
door. Also, the officer in Howard had a right under G. S. 15^1(2)1
to arrest the defendant without a warrant and to enter the room
for that purpose. The facts in the Howard case are distinguishable
from the facts set out in the question presented.
^25-
Die fact that the officers at the back door had a search warrant
would not insulate the wrongful entry by the officers and will not
render the evidence competent.
'Although the entry by the officers was forbidden, they were not
guilty of "breaking and entering the man's home." An action in
trepass may he.
Robert Morgan, Attorney General
Wilham W, Melvin,
Assistant Attorney General
12 July 1971
Subject: Prisons and Prisoners; Parole; Citizenship
Restored
Requested by: Mr. Charles B. Winberry, Jr.
Attorney at Law
Question: When seeking to have rights of citizenship
restored under Chapter 13 of the General
Statutes of North Carohna, does the phrase
"date of discharge" as used in G. S. 13-2
V. refer to the date on which a petitioner was
placed on parole or until he was officially
discharged from parole?
Conclusion: When a petitioner seeks to have rights of
citizenship restored, the phrase "date of
discharge" as used in G. S. 13-2 refers to
< the date on which the petitioner was
officially discharged from parole.
Under G. S. 13-2, a person convicted of an infamous crime may
petition the superior court to be restored of his rights of citizenship
at any time after the expiration of two years from the "date of
discharge" of the petitioner. To discharge is to release from
confinement or custody.
-426-
The sentence under which a parolee was paroled is not terminated
until officially discharged by the Board of Paroles.
G. S. 148-58.1 (a). Prior to discharge parole may be revoked and
the parolee returned to the appropriate penal institution.
G. S. 148-61.1.
Conditions of parole are a restraint upon a parolee's liberty not
shared by the pubhc generally. He is still under the supervision of
the parole authorities and subject to be remanded if he fails to
perform or violates the conditions of the parole. State v. Rhinehart,
267 N. C. 470, 480, 148 S. E. 2d 651 (1966).
Therefore, a person may petition to have his rights of citizenship
restored at any time after two years from the date of his official
discharge by the Board of Paroles.
Robert Morgan, Attorney General
; • V . Edward L, Eatman, Jr.,
Staff Attorney
14 July 1971
Subject:
Requested by:
Questions:
Taxation; Ad
Description of
G. S. 105-392
Valorem
;
Property in
Execution;
Execution;
Mr. Edwin Roland
Ashe County Tax Collector
(1) Is the clerk of superior court
authorized to issue executions pursuant to
G. S. 105-392 when proper tax
certificates are filed by the collecting
official and a certified copy of a resolution 1
of the county commissioners or the
'
governing body of a municipality
authorizing the filing is also filed with the
clerk?
-^27-
(2) When execution is issued pursuant to
G. S. 105-392, should the execution
contain a description of the property to be
executed upon?
Conclusions: (1) The clerk of superior court is
authorized to issue execution pursuant to
G. S. 105-392 when proper tax
certificates are filed and a certified copy
of a resolution of the county
commissioners or the governing body of a
municipahty authorizing the filing by the
collecting officer is also filed with the clerk
of superior court.
(2) When execution is issued pursuant to
G. S. 105-392, the execution should
include a description of the property which
is the subject matter of the execution.
Jnder G. S. 105-392, the collecting official, Le^, tax collector or
jupervisor, is authorized to file tax certificates with the clerk of
superior court and have the certificate docketed as judgments, and
execution issued thereon in due course. It is the better practice for
the clerk to require the collecting official to file a certified resolution
instructing the collecting official to file the certificates. G. S, 153-1.
The execution provided in G. S. 105-392 is a special execution.
A special execution is an execution "that directs a levy upon some
special property." Black's Law Dictionary (4d), West Publishing Co.
(1951) at p. 1570. One authority states as follows:
"When a judgment is directed against particular
property, the execution should conform to the
judgment by designating such property as the property
to be levied on. Where a writ against specific property
is proper, the description should sufficiently identify
the property. However, a description although loose,
which follows the judgment is not void for
uncertainty. It has been held sufficient to designate
the property as that recovered in the suit, where it
^28-
is described in the judgment." at
33 C.J.S. Executions § 77(b) (1942).
p. 218,
Also see: 2 Mcintosh, North Carolina Practice and Procedure,
Execution § 1907 (1956), and 30 Am. Jur. 2d Executions § 28
and § 71 (1967). Therefore, it would be the better practice to
include a description of the real property in the body of the
execution or to incorporate by reference a copy of the judgment
or certificate containing a description of the property. When the
description is incorporated by reference, a copy of the judgment
or certificate should be physically attached to the execution.
Physical attachment would assure a proper incorporation by
reference and would be for the convenience of the sheriff in
executing the writ.
Robert Morgan, Attorney General
'
' Myron C. Banks,
Assistant Attorney General
Ronald M. Price,
Staff Attorney
14 July 1971
Subject:
Requested by:
Questions:
Taxation; Privilege License Tax; Going Out
of Business License Tax; G, S. 160-56
Mrs. Gwen Waters
Tax Collector for the
City of Lenoir
(1) May a municipality levy a "going out
of business sale" Hcense tax?
(2) May a municipahty simultaneously
levy upon a merchant a hcense tax for
holding a "going out of business sale"
under G. S. 160-56 and a schedule "B"
Hcense tax or a general mercantile hcense
tax?
-429-
Conclusions: (1) A municipality may levy a "going
out of business sale" license tax.
(2) A municipality may simultaneously
levy a "going out of business sale" license
tax under G. S. 160-56 and a schedule
• "B" license tax and a general mercantile
license tax.
I Municipalities may levy a tax on all trades, professions, and
i franchises carried on or engaged within the city (G. S. 160-56).
); MunicipaUities have the power to classify business activities for
[.'taxation. In making the classifications, uniformity must be observed,
and the classification of different subjects must have a rational basis
for the distinction and all persons similarly circumstanced must be
treated alike. Kenny Company v. Brevard, 217 N. C. 269 (1940),
and Belk Brothers V. Maxwell, 2\ 5 N. C. 235 (1937). Municipahties
are authorized to levy certain named taxes under schedule "B" of
the Revenue Act, which is independent of their general taxing
authority under G. S. 160-56. As long as there is a rational and
reasonable difference between the two activities, a municipahty may
levy the taxes simultaneously.
The "going out of business sale" tax, as well as fire and bankruptcy
sale hcense taxes are generally recognized as vahd levies. They are
generally considered a valid exercise of a municipahty 's police power.
I People V. Jenkins, 140 App. Div. 786, 125 NYS 817 (1910), aff'd
as to imposition of tax 202 NY 53, 94 NE 1065(1911); City of
Miami Beach v. Burke, 185 So. 2d 720(1966); and McQuillin,
Municipal Corporations (3d), Taxation § 26.42(1964). The court
in People v. Jenkins, supra, said:
"It is fairly within the police power to protect the
people from fraud and deception, and this statute is
evidently intended to protect the pubhc from a
fraudulent business." at p. 818.
The imposition of a license tax for conducting a "going out of
business sale" under authority of G. S. 160-56 is substantially
different from a Hcense tax imposed for general mercantile activities,
those activities taxed under schedule "B" of the Revenue Act.
-430-
Consequently, a municipality may impose a license tax
simultaneously on a "going out of business sale," general mercantile
and schedule "B" activities.
Robert Morgan, Attorney General
I. Beverly Lake, Jr.,
Assistant Attorney General
Ronald M. Price,
Staff Attorney
20 July 1971
Subject:
Requested by:
Question:
Conclusion:
Taxation; Ad Valorem; Collection of!
Taxes; Tax Liens; Limitation of Actions;:
G. S. 105-422
Mr. J. Bourke Bilisoly
Wake County Tax Attorney
Do the provisions of G. S. 105^221
preclude a county from instituting am
action to collect taxes or to enforce tax
liens more than ten years from the time
such taxes become due?
No. G. S. 105-422 is a statute ofi
limitations which must be pleaded in
defense of an action to collect taxes or to
enforce tax liens instituted more than ten
years from the time such taxes became due.
Inquiry has been made as to whether a county may bring suit to
collect taxes or enforce tax liens, when more than ten years have
elapsed from the time such taxes became due. Reference must be
made to G, S. 105-422. Although entitled "Tax Liens Barred", the
statute actually provides in part as follows:
"No action shall be maintained by any county or
-431-
municipality to enforce any remedy provided by law
for the collection of taxes or the enforcement of any
tax liens held by counties and municipalities, whether
such taxes or tax hens are evidenced by the original
tax books or tax sales certificates or otherwise, unless
such action shall be instituted within ten years from
the time such taxes became due...."
"while the title of the section and the beginning of the first sentence
("No action shall be maintained ... unless ...") seem to imply a
condition precedent, a comparison with the language of other
statutes readily identifiable as statutes of limitation clearly suggests
that G. S. 105-422 is simply a statute of limitations. For example,
G. S. 1-15 provides that "civil actions can only be commenced ..."
within stated periods; G. S. 1-35 provides that "the State will not
sue for, or in respect of, any real property ..." where adverse
possession has continued for thirty years; and G. S. 1-46 provides
that "the periods /or the commencement of actions, other than for
the recovery of real property, are as set forth ..." in the sections
following G. S. 1-46. In addition, the Supreme Court, in Iredell
County V. Crawford, et al, (1946) 262 NC 720, 138 SE 2d 539,
repeatedly referred to G. S. 105-422 as a "statute of limitations".
Therefore, we conclude that G. S, 105-422 is indeed a statute of
limitations, and to be available as a defense against actions to collect
taxes or enforce tax liens instituted more than ten years from the
time such taxes became due, the statute must be specifically pleaded
by the defendant in his answer.
Iredell County v. Crawford, et al, supra.
Whether suits to collect such taxes and to enforce such tax Hens
should be brought would appear to be a policy question, the
determination of which rests within the sound discretion and good
judgment of appropriate county and municipal officials.
Robert Morgan, Attorney General
Myron C. Banks,
Assistant Attorney General
-432-
20 July 1971
Subject:
Requested by:
Questions:
Conclusions
:
Municipalities; Police; Special Policemen;
Jurisdiction of Morehead City Police on
State Property Within City Limits; North
Carolina State Ports Authority; Authority
of Town of Morehead City to Legislate by
Municipal Ordinance Within Geographical
Area Owned by Ports Authority.
Mr. George H. McNeill
Morehead City Town Attorney II
(1) Do the Morehead City poHce have
concurrent jurisdiction with special
poHcemen appointed by the Ports
Authority within the geographical
boundaries of Ports Authority property
inside city limits?
(2) Does G. S. 143-2 24(c) pre-empt thelj
right of the Town of Morehead City toi
legislate by municipal ordinance within the
premises of the Ports Authority?
|
(1) By virtue of G. S. 160-21, thej
Morehead City poUce have concurrents
jurisdiction with special policemen;
appointed by the Ports Authority on Ports?
Authority property inside city limits.
(2) G. S. 143-224(c) pre-empts the right
(
of the Town of Morehead City to legislate:
by municipal ordinance in certain instances
within the geographical area owned by the
Ports Authority.
Under G. S. 143-224(d) the Executive Director of the North Carolina
State Ports Authority is authorized to appoint special poHcemen,
who, when so appointed, shall have all the powers of the police
of incorporated towns. The property and facilities of the Ports
^33-
Authority are located inside the Morehead City town hmits. It is
the understanding of this office that the streets and alleys located
bn the property of the Ports Authority are not a part of the
Morehead City street system nor a part of the State Highway system.
In this State, the powers and duties of pohcemen and the territorial
limits within which such powers may be exercised are prescribed
by statute. G. S. 160-21 provides that pohcemen shall have the same
authority to make arrests and to execute criminal process, within
the town limits, as is vested by law in a sheriff. For the purpose
of preventing a breach of the peace or other crime, a pohceman
may enter either pubhc or private property. State v. Wray, 217 N.C.
167, 7 S.E. 2d 468 (1940).
G. S. 143-224(d) does not provide that the special pohcemen
appointed by the Ports Authority shall have exclusive jurisdiction
within the boundaries of Authority property. In the absence of such
a provision, G. S. 160-21 would be controlhng and Morehead City
policemen would have concurrent jurisdiction on property owned
by the Ports Authority within city hmits.
Generally speaking, the property of a state is exempt from municipal
legislation in the absence of a waiver on the part of the state to
regulate its own property. 62 C.J.S., Municipal Corporations,
sec. 157. The state, when creating municipal governments, does not
cede to them any control over the state's property situated within
them, or over any property which the state has authorized another
body or power to control. 56 Am. Jur. 26., Municipal Corporations,
Etc., sec. 546.
G. S. 143-224(b) provides that the provisions of Chapter 20 of the
General Statutes relating to the use of highways of the State and
the operation of motor vehicles shall be apphcable to the streets,
alleys and driveways on properties owned by or under the control
of the Ports Authority. The statute then provides, "Nothing herein
contained shall be construed as in any way interfering with the
ownership and control of such streets, aheys and driveways on the
properties of said Authority as is now vested by law in said
Authority." G. S. 143-224(c) authorized the Ports Authority to
make additional rules, regulations and adopt additional ordinances
with respect to the use of the streets, aheys, driveways and the
-434-
establishment of parking areas and relating to the safety and welfare !
of persons using the property of the Ports Authority. The clear \
intention of these provisions is to vest in the Ports Authority the
exclusive power to regulate and control the use of those properties
lying within the boundaries of the Ports Authority. !
It is therefore concluded that the Morehead City police have
concurrent jurisdiction with the special pohcemen of the Ports
Authority within the geographical boundaries of Authority property.
G. S. 143-224(c), which authorizes the Authority to make rules,
,
regulations and adopt ordinances with respect to the use of streets,
|
drives, and parking areas on Authority premises, and relating to the |
safety and welfare of persons using the property of the Authority,
:
pre-empts the right of the Town of Morehead City to legislate by
municipal ordinance on such subjects within the geographical area
owned by the Ports Authority. VaHd ordinances of the Town of
,
Morehead City which regulate conduct other than that which the s
Legislature has given the Authority the exclusive power to control, I
as set forth above, may be apphcable to Authority premises within
the City limits.
Robert Morgan, Attorney General
Roy A. Giles, Jr.,
Staff Attorney
20 July 1971
Subject: Notaries PubUc; Fees; Form of Seal, Oath
of Office; Persons 18 Years of Age May
be Notary.
Requested by: -' Mrs. Susan Lobinger
Notary Public Officer
Governor's Office
Questions: (1) What fees may a notary charge for
notarizing documents?
-435-
(2) What information should appear on
a notary seal or stamp?
(3) If the effective date of a notary's
commission begins on a Saturday or
Sunday, may the notary take the oath of
office on Friday preceding?
(4) May a person 18 years of age hold
the office of notary pubHc?
Conclusions: (1) The fees of notaries pubhc are
created and regulated by G. S. 10-8. Tliis
statute permits a notary to charge a fee of
fifty cents for protesting nonacceptance or
nonpayment of any order, draft, note,
bond or any other thing to be protested,
and ten cents for each notice sent in
connection with the protest. For all other
services, where no fee is fixed by statute
for that service, the notary may not charge
more than twenty cents for every ninety
words. Cider Co. v. Carroll, 124 N.C. 556.
(2) We find no statutory requirement as
to what information must appear upon a
notary pubhc seal or stamp. It is customary
for the seal or stamp to contain the
person's name, county and state, and the
words "notary pubhc" so that this will
appear on the instrument notarized.
(3) G. S. 10-2 requires a notary to take
the oath before the register of deeds in the
county where the notary is to act. A notary
pubhc is a pubhc officer. State v. Knight,
169 N.C. 333. Thus, under G. S. 128-5 the
notary must take the oath of office before
acting. The notary may therefore take the
oath prior to the day his commission
becomes effective, but he would not be
^36-
eligible to act until the effective date of
the commission.
(4) Yes.
The position of notary pubHc is a public
office. Since the adoption of the
Twenty-Sixth Amendment to the U. S.
Constitution, the right of citizens of the
United States who are 18 years of age or
older to vote shall not be denied or
abridged by the United States or by any
state on account of age. Article VI,
< Section 1 of the North Carolina
Constitution of 1970, required a person to
be 21 years of age before he was eligible
to vote. The Twenty-Sixth Amendment has
the effect of changing 21 years of age tof
18 years of age. Section 6 of Article VI
^ of the State Constitution provides: "Every
qualified voter in North Carolina except as
- in this Constitution disquahfied shall be
eligible for election by the people to
office." {Emphasis added.)
The prior provision of the Constitution of 1868, Article VI,
Section 7, relating to ehgibihty to office provided that "every voter
shall be eligible to office".
Under the Constitution of 1868, every pubHc office holder, whether
elected or appointed, had to be a quahfied voter. State v. Knight,
169 N.C. 333.
Apparently under the Constitution of 1970, there are noj
qualifications which a person must possess in order to hold an|
appointive public office in North CaroHna, and the General Assembly:
would be free to specify the qualifications for any appointive office.!
The office of notary public is an appointive pubHc office and
Chapter 10 of the General Statutes does not contain any
qualifications or specify what age a person must be before he is
eligible for appointment.
-437-
'Thus, it is the opinion of this office that a person 18 years of age
may be appointed a notary pubhc if the Governor, in his discretion,
should desire to make such an appointment.
Robert Morgan, Attorney General
James F. Bullock,
' Deputy Attorney General
20 July 1971
Subject: Labor; Minimum Wage Act; Amendment to
G. S. 95-87; Part Time Employees Working
Sixteen Hours or Less per Week in
Establishment Having Three or Less Full
Time Employees; Counting Employees for
Basic Coverage Under the Minimum Wage
Act.
Requested by:
Question:
Conclusion:
Honorable Frank Crane
Commissioner of Labor
Under the 1971 Amendment to Section
95-87 of the Minimum Wage Act, shall part
time employees be counted in determining
whether the employer has four or more
persons employed as provided by G. S.
95-88?
Part time employees who work 16 hours
or less per week must be enumerated or
counted towards coverage of an
estabhshment employing four or more
persons.
Chapter 138 of the Session Laws of 1971 rewrote G. S. 95-87 so
that the same now reads as follows:
"§ 95-87. Minimum wage^ .--Every employer shall pay
-438-
!
to each of his employees wages as follows: (a) at a
rate of not less than one dollar and forty-five cents
($1.45) per hour after July 1, 1971; (b) at a rate of
not less than one dollar and sixty cents ($1.60) per
hour after July 1, 1972. This act shall not apply to
part time employees who work 16 hours or less per
week if the estabUshment where such part time
employees are employed has three or less full time
employees at any one time."
The basic coverage under the Minimum Wage Act depends on an
enumeration of employees and G. S. 95-88 reads as follows:
"§ 95-88. Certain establishments excluded.-This did
v shall not apply to any estabUshment that does not have
four or more persons employed at any one time:
Provided, the husband, wife, son, daughter or parent
of the employer shall not be enumerated in
determining the number of persons employed."
Prior to the passage of the 1971 amendment the following substitute
was proposed:
"Substitute H. B. 18 by deleting the quotation marks
at the end of line 10 and inserting the following:
"This act shall not apply to part time employees who
work sixteen (16) hours or less per week, or the
establishment with such part time employees are
employed if such estabhshment has three (3) or less
full time employees at any one time."
This proposed substitute was not accepted and the amendment was
made and passed as set forth above. The Minimum Wage Act (G. S.
95-88) excludes certain employees; that is, a husband, wife, son,
daughter, or parent, which employees cannot be counted in any
enumeration for the purpose of determining whether the
establishment has four or more employees employed at any one
time, which constitutes the basic coverage.
G. S. 95-87, as amended by the 1971 General Assembly, removes
-439- I
part time employees who work 1 6 hours or less per week if the
establishment has three or less full time employees at any one time.
jThese part time employees do not have to be paid the minimum
wage but the amendment does not remove these employees from
being counted for the purpose of determining coverage under the
Minimum Wage Law, and we are of the opinion, therefore, that
these part time employees mentioned in the amendment must be
enumerated or counted towards the coverage of an establishment
employing four or more persons. Therefore, for example, an
establishment having three regular full time employees by counting
ithe part time employees would have five employees, and the three
regular employees would be entitled to the minimum wage of $1.45
per hour. The same would be true if there were only one part time
employee wliich would make the total amount of employees four,
since the basic coverage is four or more.
Robert Morgan, Attorney General
Ralph Moody,
Deputy Attorney General
20 July 1971
Subject: Prisons and Prisoners; Hard Labor as
Punishment Prohibited; Prisoners May be
Employed.
Requested by: Senator JuHan AUsbrook
Legislative Office #1221
li Questions: (1) Does Article XI, Section 1 of the
North Carohna Constitution, as rewritten
in the new Constitution which became
effective July 1, 1971, prohibit the
General Assembly and the courts from
imposing hard labor as punishment for
crime?
(2) Does Article XI, Section 1 of the
-440-
new Constitution forbid the employment
of prisoners by the Department of
Correction pursuant to laws enacted by the
General Assembly?
Conclusions: (1) Yes.
(2) No.
Article XI, Section 1 of the prior Constitution reads as follows:
"§ 1. Punishments; convict labor; proviso .—Tho,
following punishments only shall be known to the laws
. . of this State, viz.: death, imprisonment with or
without hard labor, fines, removal from office, and
disqualification to hold and enjoy any office of honor,
, trust, or profit under this State. The foregoing
provisions for imprisonment with hard labor shall be
construed to authorize the employment of such
convict labor on pubUc works or highways, or other
labor for public benefit, and the farming out thereof,
where and in such manner as may be provided by law;
but no convict shall be farmed out who has been
sentenced on a charge of murder, manslaughter, rape,
attempt to commit rape, or arson: Provided, that no
1 convict whose labor may be farmed out shall be
punished for any failure of duty as a laborer, except
by a responsible officer of the State; but the convicts
so farmed out shall be at all times under the
supervision and control, as to their government and
discipline, of the penitentiary board or some officer
of this State."
Article XI, Section 1, as it appears in the new Constitution, read
as follows: s^ , ; ;
"§ 1. Punishments. The following punishments only
shall be known to the laws of this State: death,
imprisonment, fines, removal from office, and
disquahfication to hold and enjoy any office of honor,
'icv\ I trust, or profit under this State."
-441-
Two important omissions have been made in the new Constitution.
First, whereas the prior section authorized "imprisonment with or
without hard labor", the new section now authorizes
"imprisonment", but the words "with or without hard labor" have
been deleted.
Second: Whereas the old section stated that "imprisonment with
hard labor shall be construed to authorize the employment of such
convict labor on pubhc works on highways, or other labor for pubhc
benefit, and the farming out thereof, where and in such manner
as may be provided by law ....", the new section has deleted all
of this language.
Pursuant to the authority of the prior Constitution, the General
Assembly has adopted work on the pubhc roads as a part of the
punishment for crimes. State v. Young, 138 N.C. 571.
In State v. Nipper, 166 N.C. 272, the Court discussed the common
law punishments by which corporal punishments could be inflicted,
and in reference to Article XI, Section 1, stated: "The Constitution
of 1868 intended by the above provisions to restrict the sentence
which might be imposed by the courts upon conviction of crime
to those enumerated." The Court further stated: "While our
constitutional provision against the infliction of corporal punishment
as a part of the sentence of the courts does not directly prohibit
Its infliction in prison discipline, ...." {Emphasis added.)
The North Carolina Supreme Court has stated that the courts may
impose only such punishments as are authorized by Article XI,
Section 1, of the Constitution. State v. Cole, 241 N.C. 576.
The State Constitution is not a grant, but a Umitation or restriction
of powers on the Legislature. Yarborough v. Park Commission, 196
N.C. 284; Wells v. Housing Authority, 213 N.C. 744; Purser v.
Ledbetter, 227 N.C. 1 . Strict appHcation of rules of constitutional
construction create a presumption that a change in the law was
intended. Where a word in an amendment or re-enactment of a
Constitution is omitted, the omission should be presumed to have
been intentional. This general principle is universally appHed unless
there is something to indicate an intention of the framers of the
new Constitution to the contrary. 16 Am. Jur. 2d, Constitution,
Sec. 80, page 262.
^42-
"If the language used is clear and unambiguous, its meaning and
intent are to be ascertained from the instrument itself by construing
the language as it is written." 16 C.J.S., Constitution, Sec. 19.
The limitation contained in Article XI, Section 1 is not "Thou shalt
not", but "Thou shalt only". When the new Constitution deleted
the words "With or without hard labor", it would appear that a
further Umitation has been imposed.
Thus, it is the conclusion of this office that new Article XI, Section
1 means exactly what its clear language says: "The following
punishments only shall be known to the laws of this State: death,
imprisonment, fine, removal from office, and disqualification to hold
and enjoy any office of honor, trust, or profit under the State."
{Emphasis added.) j ^
This being true, the General Assembly has no authority to impose
"hard labor" as punishment for crime, and the courts therefore may
not impose a judgment which requires hard labor as punishment,
(Emphasis added.)
We are not unaware of Article I, Section 17, which provides:
"Slavery is forever prohibited. Involuntary servitude, except as a
punishment for crime whereof the parties have been adjudged guilty,
is forever prohibited." This is almost the same language which
appeared in Article I, Section 33 of the 1868 Constitution, as well
as the language of the Thirteenth Amendment to the U. S.
Constitution.
:|
At first glance, the view that Article XI, Section 1 abolishes hard
labor would indicate that Article I, Section 17 has been repealed
to the extent it does not prohibit involuntary servitude as
punishment for crime.
i
Amendments are usually adopted for the purpose of making ai
change; hence it is very Hkely that a conflict may arise between
an amendment and portions of a Constitution adopted at an earher
time. This may be true, as in our present Constitution, even though
it was a rewrite and revision adopted by the people all at one time,
Constitutional provisions must be harmonized whenever possible. A
-443- .
^
provision is not invalid merely because it conflicts unless the
provisions are so repugnant as to be irreconcilable. Such is not the
case here.
If inconsistent provisions cannot be completely harmonized or
reconciled, the special provision relating to a subject matter will
control the more general provision, and both will operate together,
neither working the repeal of the other, and the general provision
will be left to control in cases where the special does not apply.
Johnson v. Duke, 24 A. 2d 304; Swanson v. State, 271 N.W. 264;
People V. Western Air Lines, Inc., 268 P. 2d, 723; 16 Am. Jur.
2d, Constitutional Law, Section 69.
These rules may be applied to Article XI, Section 1 and Article
I, Section 17, and effect given to both sections, to the end that
Article I, Section 17 would read: "Involuntary servitude, except
whereof the parties have been adjudged guilty of a crime, is forever
prohibited."
Neither the Constitution of the United States nor Article I, Section
17 of the State Constitution prohibits the employment of convict
labor. Although Article XI, Section 1 of the State Constitution is
construed to prohibit the imposition of hard labor as punishment,
the General Assembly may authorize the employment of convict
labor by the Department of Correction.
In 18 C.J.S., Convicts, Section 13, we find the following: "A state
or county is entitled to a convict's labor or services. The legislature,
subject to constitutional restrictions, may authorize the employment
of convicts on pubhc works, or leave the nature of their employment
to the discretion of a board of control, and may provide for the
payment of compensation to them,"
It is within the police power of the State to provide for the
employment of convicts. Prior to the Constitution of 1868,
employment of convicts on the pubhc roads had been enacted and
sustained. State v. Young, 138 N.C. 571.
G. S. 148-26 sets forth the State pohcy on employment of prisoners
"to provide diversified employment for all able-bodied inmates of
the State prison system in work for the public benefit that will
-444-
reduce the cost of their keep while enabhng them to acquire or
retain skills and work habits needed to secure honest employment
after their release."
There is no limitation in the Constitution upon the General
Assembly's authority to carry out the above stated pohcy.
Robert Morgan, Attorney General
James F. Bullock,
Deputy Attorney General
r
23 July 1971
Subject:
Requested by:
Questions
:
Education; State-Supported Colleges and
Universities; Qualifications for In-State
Tuition; Chapter 845 of the 1971 Session
Laws ! -y-ii. '
:,:•": ' ,
Cameron West, Director
State Board of Higher Education
(1) The fourth paragraph of
N.C.G.S. 116-143 states that "Where an
individual serves as a faculty member on
a part-time basis and is enrolled at the same
time as a part-time student, a special
tuition rate not lower than the North
Carohna resident rate may be granted in
the discretion of the Board of Trustees of
the institution." Section 6 of Chapter 845
of the 1971 Session Laws, ratified
July 13, 1971, rewrote paragraph four of
N.C.G.S. 116-143 as follows: "No special
tuition rate may be granted to an individual
serving exclusively as a faculty member on
a part-time basis and who is enrolled at the
same time as a part-time student; provided,
however, that the Advisory Budget
-445-
- ' Commission is hereby authorized to
modify this provision to alleviate justifiable
budget difficulties in the affected
institutions during the 1971-73 biennium."
. Does Chapter 845 of the 1971 Session
Laws affect the validity of any contract
t^ . entered into prior to July 13, 1971, by
students and state-supported institutions of
higher education pursuant to
N.C.G.S. 116-143?
(2) Prior to the enactment of
Chapter 845 of the 1971 Session Laws, to
quaUfy for in-state tuition a legal resident
must have maintained his domicile in North
Carolina for at least six months next
preceding his enrollment or re-enrollment
in an institution of higher education in this
State. Chapter 845 of the 1971 Session
Laws extends the period of quahfication
from six months to twelve months. Is the
twelve-month requirement applicable to
students who have appHed to and have
been accepted by a state-supported
; institution prior to July 13, 1971, the
effective date of Chapter 845?
Conclusions: (1) Chapter 845 of the 1971 Session
Laws does not affect the validity of any
contract entered into prior to
July 13, 1971, where the individual has
been offered and has accepted to serve as
a faculty member on a part-time basis and
is enrolled at the same time as a part-time
student and as a part of his employment
as a part-time faculty member has been
offered a special tuition rate not lower than
the North Carolina resident rate.
(2) The eligibility of all students who
have apphed and have been accepted by
A46-
state-supported institutions of higher
education prior to July 13, 1971, shall be
determined upon the individual having
maintained his domicile in North Carohna
for at least the six months next preceding
the date of first enrollment or
re-enrollment in an institution of higher
. . education in this State. The tv^elve-month
'' requirement as provided for in
Chapter 845 of the 1971 Session Laws
does not apply to any individual who
i' applied for admission and was accepted by
a state-supported institution of higher
education prior to July 13, 1971. The
'^
, ^ student already enrolled as an in-state
. 1 student, qualifying as such by compliance
• with the six-month requirement prior to
- July 13, 1971, shall retain in-state status.
Chapter 845 of the 1971 Session Laws (hereinafter referred to as
Chapter 845) provides in Section 6 in part the following:
"No special tuition rate may be granted to an
individual serving exclusively as a faculty member on
a part-time basis and who is enrolled at the same time
as a part-time student; provided, however, that the
Advisory Budget Commission is hereby authorized to
modify this provision to alleviate justifiable budget
difficulties in the affected institutions during the
1971-73 biennium."
The above quoted portion of Chapter 845 rewrote the fourth
paragraph of N.C.G.S. 116-143 which, prior to its amendment as
set forth above, read as follows:
"Where an individual serves as a faculty member on
a part-time basis and is enrolled at the same time as
a part-time student, a special tuition rate not lower
than the North Carolina resident rate may be granted
in the discretion of the Board of Trustees of the
institution." . ,
...
447-
Prior to July 13, 1971, as provided for in N.C.G.S. 1 16-143, many
of our state-supported institutions of higher education employed
nonresident graduate students as teaching assistants and extended
to them, as one of the terms of such employment, a special tuition
rate. Such arrangements were made prior to the change in the law
for the 1971-72 academic year by way of an exchange of letters,
that is, a letter from the institution offering an individual the
opportunity to serve, at a special tuition rate not lower than the
resident rate, as a faculty member on a part-time basis while enrolled
at the same time as a part-time student followed by a letter from
that individual accepting such position.
The kind of offer and acceptance referred to above, whether it be
oral or written, would result in a vaUd and binding contract upon
the institution. Though such a contract may not be valid if entered
into subsequent to enactment of Chapter 845, the contract was valid
prior to the enactment of Chapter 845 and is binding upon the
institution. The prohibitions contained in Chapter 845 may not be
retroactively apphed in this situation.
Ordinarily, a statute will be given prospective effect only and will
not be construed to have retroactive effect unless such intent is
clearly expressed or arises by necessary implication from its terms.
Housing Authority of Durham v. Thorpe, 271 N. C. 468,
157 S. E. 2d 147. Had the General Assembly attempted to give
retroactive effect to Chapter 845, and invalidate contracts entered
into prior to the effective date of Chapter 845, such an attempt
would have been unconstitutional. The General Assembly has the
power to enact retroactive laws provided that they do not impair
the obligation of contracts or disturb vested rights. Piedmont
Memorial Hospital v. Guilford County, 221 N. C. 308,
20 S. E. 2d 332. A statute may not be given retroactive effect
where such construction would interfere with vested rights. Wilson
v. Anderson, 232 N. C. 212, 50 S. E. 2d 836,
18 A.L.R. 2d 951, petition for rehearing dismissed,
232 N. C. 521, 61 S. E. 2d 447, 18 A.L.R. 2d 959.
All contracts entered into between an institution and an individual
prior to July 13, 1971, and pursuant to N.C.G.S. 1 16-143 are valid
and enforceable.
^48-
In the classification of students as in-state or out-of-state at
state-supported institutions of higher education, the Board of
Trustees of each institution has adopted the following regulation:
"To quahfy for in-state tuition, a legal resident must
have maintained his domicile in North CaroUna for at
least the six months next preceding the date of first
enrollment or re-enrollment in an institution of higher
education in this State."
Chapter 845 changed the six months period of domicile as a
non-student to twelve months. Section 8 of Chapter 845 provides:
''In-State Residents: - To quahfy for in-state tuition,
a legal resident must have maintained his domicile in
North Carolina for at least the twelve months next
preceding the date of first enrollment or re-enrollment
in an institution of higher education in this State.
Student status in an institution of higher learning in
this State shah not constitute eUgibihty for residence
to quahfy said student for in-state tuition."
To apply the twelve-month requirement to students and prospective
students who have applied for admission and have been accepted
prior to July 13, 1971, would violate vested rights. The same
principles apphcable to contracts are apphcable here.
The twelve-month requirement as provided for in Chapter 845 of
the 1971 Session Laws does not apply to any individual who apphed
for admission at a state-supported institution of higher education
and was accepted prior to July 13, 1971. The student already
enrolled as an in-state student, quahfying as such by compliance
with the six-month requirement prior to July 13, 1971, shah retain
in-state status.
' Robert Morgan, Attorney General
Andrew A. Vanore, Jr.,
Assistant Attorney General
^49-
23 July 1971
Subject:
Requested by:
Question
:
Conclusion
:
Infants and Incompetents; Guardians;
Minors; Clerks of Superior Court;
G. S. 33-1, 33-41; Chapter 585, 1971
Session Laws (G. S. 48A-1, 48A-2).
Mr. Fred P. Parker, Jr.
Wayne County Attorney
Under the provisions of the "
1 8 Year Old
Majority Act" (Chapter 585, Session Laws
of 1971), which provides in effect that any
person 1 8 years of age or older is no longer
a minor, is a person who has attained the
age of 1 8 entitled to receive his estate from
his guardian?
In most instances, yes. However, if the
estate was set up under a court order, will,
or other legal document which provides
that the guardianship is to continue until
the ward reaches the age of 2 1 , the "
1
8
Year Old Majority Act" may not be
appUcable.
G. S. 33-1 provides, in part: "The clerks of the superior court
within their respective counties have full power, from time to time,
to take cognizance of all matters concerning orphans and their
estates and to appoint guardians in all cases of infants. ..."
North Carolina General Statutes do not define "infant" or "minor".
However, these terms are synonymous. ^^INFANT. A person within
age, not of age, or not of full age; a person under the age of 21
years; a minor. ..." ^^MINOR. An infant or person who is under
the age of legal competence. One under 21. A term derived from
the civil law, which described a person under a certain age as less
than so many years. ..." (Black's Law Dictionary, 4th Ed.)
Chapter 585, Session Laws of 1971, was ratified June 17, 1971,
and became effective July 5, 1971 , upon certification by the United
-450-
States Administrator of General Services that the legislatures of at
least three-fourths of the States had ratified an amendment to the
U. S. Constitution providing that the rights of citizens who are 18
years of age to vote shall not be denied or abridged on acount of
age. This act provides:
"§48A-1. Common law definition of 'minor'
abrogated.-The common law definition of minor
insofar as it pertains to the age of the minor is hereby
repealed and abrogated.
"§48A-2. Age of minors.-A minor is any person who
has not reached the age of 18 years."
G. S. 33-41 provides, in part: "A guardian may be required to file
such account at any time after sixty days from the ward's coming
of full age or the cessation of the guardianship;. ..."
Subject to the remainder of this paragraph, in our opinion.
Chapter 585, Session Laws of 1971, requires a clerk of superior
court to permit the filing of a final account in the guardianship
of those persons, not otherwise under a legal disabihty, who were
18 years of age or older on July 5, 1971, or who thereafter attain
the age of 18. In those instances where a guardian was appointed
by the clerk pursuant to a court order or pursuant to a will or
other legal document, we suggest the clerk review the language of
such order or document. Should it use the phrase "21 years of age"
rather than "infant" or "minor", questions may arise as to the
applicability of Chapter 585. If the document involved is a court
judgment, it may be appropriate for a motion in the cause to be
made to revise the judgment.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
s^ ' Assistant Attorney General
27 July 1971
Subject: , ,. Sand Dune Protection; Authority of a
451-
Requested by:
Questions:
Conclusions:
County to Protect the Sand Dunes Along
the Outer Banks In the Entire County,
Including Any Municipahty Located
Therein.
Mr. L. Patten Mason
Carteret County Attorney
(1) Does the board of county
commissioners under Article 3,
Chapter 104B of the General Statutes of
North Carohna, have the authority to
protect the sand dunes along the Outer
Banks within the corporate hmits of any
municipahty along the Outer Banks located
in that county?
(2) Does the Sand Dune Protection
Ordinance of Carteret County sufficiently
incorporate the duties, responsibihties, and
provisions of Article 3, Chapter 104B of
the General Statutes, so as to be apphcable
in any municipahty located along the Outer
Banks of Carteret County?
(1) The North Carolina General
Assembly intended by the enactment of
Article 3, Chapter 104B of the General
Statutes of North Carolina, to protect the
sand dunes along the Outer Banks of North
Carohna from destruction and damage; and
the Legislature therein authorized the
boards of county commissioners to enforce
the statute in the entire county along the
Outer Banks, including any municipahties
located therein.
(2) The Sand Dune Protection
Ordinance of Carteret County bases its
authority on and incorporates Article 3,
Chapter 104B of the General Statutes of
-452-
North Carolina, and, therefore, is
enforceable in any municipality located
along the Outer Banks of Carteret County,
North Carolina.
Article 3, Chapter 104B of the General Statutes of North Carolina,
is the sand dune protection law. The North Carohna General
Assembly's findings and intent relative to protection of sand dunes
along the Outer Banks are set out in G. S. 104B-3 as follows:
' "§104B-3. Legislative findings.-It is hereby
determined and declared as a matter of legislative
finding that the area of the State of North Carohna
lying along the Atlantic Ocean front, and in particular
the outer banks of this State as hereinafter defined,
is a major asset to the economy of the entire State
and as such should be protected and preserved. This
area is wholly or in part protected from actions of
the Atlantic Ocean and storms thereon by a system
of natural or constructed dunes providing a protective
barrier for adjacent lands and inland waters and land
against the actions of sand, wind and water. Certain
persons, firms, and corporations have from time to
time modified or destroyed the effectiveness of such
protective barriers in the process of developing the
water front for various purposes. These practices
constitute serious threats to the safety of adjacent
properties and to pubhc highways, as well as to the
value and taxable basis of such adjacent properties,
and they constitute a real danger to the health, safety,
and welfare of persons living, visiting or sojourning in
such area. It is therefore deemed necessary to protect
the area and especially the system of protective barrier
j
dunes as hereinafter provided." I
1
Thus, the General Assembly found that the Outer Banks of North
Carolina are a major asset to the economy of the State; that they
afford protection to persons and property; that the area is
susceptible to damage from wind and water; and that certain persons,
firms and corporations have destroyed the protective barrier afforded
by the sand dunes. Finally, the Legislature indicated that the intent!
453-
of the law is to protect the sand dunes along the Outer Banks from
destruction or damage.
The Outer Banks are defined in G. S. 104B-13:
"The term 'outer banks of this State' shall be
construed to mean all of that part of North Carolina
which is separated from the mainland by a body of
water, such as an inlet or sound, and which is in part
bounded by the Atlantic Ocean and in New Hanover,
Onslow, and Brunswick counties this shall include the
land areas lying between the Intra-Coastal Waterway
and the Atlantic Ocean." {Emphasis supplied.)
The General Assembly stated that the Outer Banks shall include
"all of that part of North Carolina" bordering on the Atlantic Ocean
and made no distinction between municipaUties and counties. It is
logical to assume that the General Assembly intended by the law
to protect all of the Outer Banks and not just those areas controlled
by county governments. If the municipaUties located on the Outer
Banks were not included, the purpose of the act would be defeated
in that large areas of sand dunes on the Outer Banks would be
unprotected. The General Assembly has not deemed it necessary
to enact a law appUcable to municipaUties which would give them
similar authority to act nor is there such authority included within
the municipal powers enumerated in G. S. 160-200. It is clearly
indicated that the General Assembly intended to give the counties
the authority to protect all of the Outer Banks within their
respective boundaries.
The Sand Dune Protection Ordinance of Carteret County sets out
in Section 1-3:
''AUTHORITY, Chapter 104B, Article 3,
Section 104B-3 et seq. of the General Statutes of
North Carolina authorize(s) and empowers the Board
of Commissioners of Carteret County to regulate the
protection of natural and constructed dunes along the
outer banks of Carteret County."
I
The authority by which Carteret County obtains its power and
^54-
jurisdiction is included in the ordinance, and the ordinance further i
incorporates the duties, responsibiUties and provisions of Article 3,
Chapter 104B of the General Statutes of North Carolina. Thus, the
authority granted by the State statute to Carteret County would
include the authority to enforce the ordinance within the
municipalities along the Outer Banks located in Carteret County.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
27 July 1971
Subject:
Requested by:
Question:
Conclusion:
Taxation; Ad Valorem; Exemptions; Real
Property Belonging to Nonprofit Medical
Foundation; G. S. 105-278 (Formerly
G. S. 105-296 -See Chapter 806, Session
Laws of 1971, New Machinery Act)
Mr. H. L. Riddle, Jr.
Burke County Attorney
Is a dwelling house owned by a nonprofit
medical foundation, which house is held to
assure incoming doctors of a place to live
and which is rented by the foundation to
doctors and their families, exempt from
county ad valorem taxes?
A dwelling house owned by a nonprofit
medical foundation, which house is held to
assure incoming doctors of a place to live
and which is rented by the foundation to
doctors and their famihes, is not exempt
from county ad valorem taxes.
Under the Machinery Act, Chapter 806, Session Laws of 1971, all
property, real and personal, within the jurisdiction of the State is
^55-
subject to taxation unless it is excluded from the tax base or
exempted from taxation by a statute of statewide application
enacted pursuant to Article V, Section 2(3) of the North Carolina
Constitutuion. G. S. 105-274. The above property is not classified
and excluded from the tax base under applicable sections of the
General Statutes so classifying and excluding property from taxation
(G. S. 105-275, G. S. 105-276 and G. S. 105-277), and the above
property does not appear to be exempted from taxation under
G. S. 105-278, which provides that certain enumerated real
property "and no other" shall be exempted.
The subsection of G. S. 105-278 having closest application appears
to be subsection (6) which provides an exemption for "buildings,
with the land actually occupied, belonging to . . . any benevolent,
patriotic, historical, or charitable association used exclusively for
lodge purposes by said societies or association, . . . ." Even if
a nonprofit medical foundation or trust estabUshed for the main
purpose of making doctors available to an area, qualifies as a
"charitable association", the rental of a dwelling owned by such
foundation to a doctor does not appear to be a use of such property
"exclusively for lodge purposes", or for "the purposes for which
the association was organized, Le^ charitable purposes", as the words
"lodge purposes" have been interpreted to mean by this office in
the past. O.A.G. to Harley B. Gaston, dated 25 March 1960; O.A.G.
to James R. Hood, dated 28 August 1969. It is not the character
of the association owning the property but rather the purpose for
which it is held which is determinative. Sir Walter Lodge vs. Swain,
:217 N. C. 632, 9 SE 2d 365. In Sparrow vs. Beaufort County,
'221 N. C. 222, 19 SE 2d 861, the Supreme Court stated with
respect to property held for educational, charitable or reUgious
purposes as follows:
"Property held for any of these purposes is supposed
to be withdrawn from the competitive field of
commercial activity, .... But when it is thrust into
the business Hfe of the community it loses its sheltered
place, regardless of the character of its owner, for it
is held for profit or gain. ..." (at p. 224)
Exemption from taxation is never presumed and statutes providing
exemptions are to be strictly construed. Strong, North Carolina
-456-
Index 2d, Vol. 7, Taxation, p.
258 N. C. 749, 129 SE 2d 465;
229 N. C. 313, 49 SE 2d 754.
128; Sale v.
Henderson
Johnson,
V. Gill,
27 July 1971
Subject:
Requested by:
Question
:
Conclusion:
Robert Morgan, Attorney General
I. Beverly Lake, Jr.,
Assistant Attorney General
Mental Health; Courts; Responsibility for
Transporting Mental or Inebriate Patients to
Hospitals ^
Mr. Charles M. Johnson
Clerk of Superior Court
Montgomery County
Who has the responsibihty of transporting
judicially admitted mental or inebriate patients
to state hospitals?
Responsibility for transporting a judicially
admitted mental or inebriate patient to a hospital
is upon the sheriff when ordered to do so by;
the clerk. If the order does not specify who shall
take the patient to the hospital, a friend of the
patient or a member of the patients's family may
transport the patient to the hospital if he is
content to be so transported.
Under various provisions of Chapter 122 of the General Statutes,
judicial commitments for mental or inebriate patients are made by
the clerk. In conducting an examination of an alleged mentally ill
or inebriate person and, if warranted, committing to a propei
hospital, the clerk acts in a judicial capacity. See Jarman v. Offutt.}
239 N. C. 468, 80 SE 2d 248 (1954).
-A51-
In the case of Southern Railway Company v. Mecklenburg County,
et al, 231 N. C. 148, 56 SE 2d 438 (1949), the court said that
the sheriff is the chief law enforcement officer of the county.
Therefore, it is his duty to transport judicially committed inebriate
or mental patients when ordered to do so by the clerk.
No provision of law has been found which prevents the
transportation of the patient by a friend or a member of his family
if the clerk's order does not require the sheriff to do so and the
patient is content to be so transported.
Robert Morgan, Attorney General
Parks H. Icenhour,
Assistant Attorney General
4 August 1971
Subject: Pubhc Officers & Employees; Holding
Over; State Board of Assessment;
G. S. 105-288
Requested by:
Question:
Mr. Thomas W. Alexander
Chairman, State Board of Assessment
Do those persons who were appointed
members of the State Board of Assessment
pursuant to former G. S. 105-273
presently continue as members of the
Board although the statute has been
rewritten and renumbered, and the
appointment of new members provided
for?
Conclusion: Yes. The Constitution and apphcable
statutes all provide that public officers
continue to serve until their successors are
appointed and quahfied, and there is
nothing to indicate that the General
^58-
Assembly intended to abolish the formeij
offices or to create a new Board to replaceJSiS
the former one.
The Chairman of the State Board of Assessment has inquirec
whether those persons who were appointed members of the Board
pursuant to former G. S. 105-273 continue as members of the
Board, although the statute has been rewritten and renumbered as
a part of the recent overall revision of the Machinery Act. (C. 806.
S.L. 1971.) . ;
i
Former G. S. 105-273, under which the present five members o^^
the Board were appointed, provided:
"(a) There is hereby created a State Board of
Assessment of five members with all the powers and
duties prescribed by law. On July 1, 1967, and
quadrennially thereafter, the Governor, Lieutenant
Governor and Speaker of the North Carohna House
of Representatives shall each appoint one member to
serve for four years and until his successor is appointed
and quahfied. On July 1, 1967, the Governor shall
appoint one additional member to serve for two years
and until his successor is appointed and qualified ; and
\ on July 1, 1969, and quadrennially thereafter, the
Governor shall appoint a successor to the original one
additional member to serve for four years and until
his successor is appointed and quahfied. The Director
of Tax Research shall serve ex officio as the fifth
member of the Board. ..."
Under that act, three members were appointed as of 1 July 1967,
to serve "for four years and until his successor is appointed and
qualified"; and one was appointed as of 1 July 1967 to serve "for
two years and until his successor is appointed and quahfied",]
thereafter to be appointed quadrennially; and the fifth member
serves ex officio. Thus, the terms of three members would ordinarily
have expired on 1 July 1971, and terms of the fourth member
would have expired on 1 July 1973, with their successors appointed
to take office on those dates.
-459- ^:
[owever, effective 1 July 1971, former G. S. 105-273, now
I. S. 105-288, was rewritten to provide in part as follows:
UUi
loa
ftl
8fl
"(b) The State Board of Assessment shall be composed
of five members chosen as provided in subdivisions (b)
(1) through (b) (6), below.
(1) Members of the Board serving on the effective date
of this act shall serve until their current terms expire
and their successors are appointed and quahfied.
(2) On July 1, 1971, and quadrennially thereafter,
the Governor, the Lieutenant Governor, and the
Speaker of the North Carolina House of
Representatives shall each appoint one member to
serve for four years and until his successor is appointed
and quahfied.
(3) On July 1, 1973, and quadrennially thereafter,
the Governor shall appoint a member to fill the single
term expiring on that date to serve for four years and
until his successor is appointed and quahfied.
(4) The Director of the Department of Tax Research
shall serve ex officio as a member of the Board. ..."
Jo appointments have yet been made under the new statute, and
tie Chairman has expressed concern that the persons who were
lembers of the Board before the effective date of the new act may
e without authority to function as the State Board of Assessment.
/e conclude that such is not the case.
/hen the authors of new G. S. 105-288 provided that "members
r the Board serving on the effective date of this act shall serve
ntil their current terms expire and until their successors are
ppointed and quahfied", they were clearly referring to those
'ersons who had been appointed under former G. S. 105-273. This
onclusion is confirmed, we believe, by the fact that the fourth
lember to be appointed under G. S. 105-288 is not to be
ppointed until 1 July 1973, the date on which the term of the
ourth member appointed under former G. S. 105-273 was
-460-
scheduled to expire.
There is nothing in the new statute to suggest that the General!
Assembly intended to aboUsh the former offices or to create anf
entirely new Board to replace the former Board.
Thus, we conclude that those members appointed under former
G. S. 105-273 continue to be members of the present State Board
of Assessment, in the case of three of their number, until their
successors are appointed and quaUfied, and in the case of the fourth,
until 1 July 1973 and until his successor is appointed and quahfied.i
In addition to being the clear intention of the statute,
G. S. 105-288, such a result is specifically authorized under our
Constitution: "In the absence of any contrary provision, all officers
in this State, whether appointed or elected, shall hold their positions
until other appointments are made or, if the offices are elective,
until their successors are chosen and quahfied." (See also:;
G. S. \28-7 ; Hedgpeth v. Allen, 220 N. C. 528 (\94\); Freeman
V. Commissioners, 217 N. C. 209 (1940)).
The purpose of such a provision is "to prevent a hiatus in the
government pending the time when a successor may be chosen and
inducted into office." 43 Am. Jur., PubHc Officers, § 164.
' Robert Morgan, Attorney General
/ Myron C. Banks,
... .
'
Assistant Attorney General
4 August 1971
'.4 ;
Subject:
Requested by:
Infants and Incompetents; Guardians; Joint!
Savings Accounts; Right of Guardian tq
Remove Funds from Savings Account ini
Which Guardian's Ward has a Contractualj
Right to Withdraw Funds.
Mr. W. C. York
Savings and Loan Supervisor
Department of Insurance
A6\-
^estion: Where a husband and wife have had a joint
savings account in a savings and loan
association with a right in either to
• withdraw all or part of the funds in the
account, the wife becomes incompetent
and has a guardian appointed for her, does
the guardian have authority to withdraw all
of the funds from the joint savings
account?
i^onclusion: - The guardian of the incompetent wife can
withdraw from the joint account only such
funds as are necessary for the needs of the
incompetent. It is suggested that the
decision as to the needs of the incompetent
should be made by the clerk of superior
court, after notice to the husband and after
hearing and the clerk's order forwarded to
the savings and loan association where the
joint account is maintained.
t should be noted initially that the right of survivorship is not
nvolved since neither husband nor wife is deceased.
ji'here appeared to be no appellate court decisions in this State
'leciding or discussing this question, nor are there any North Carolina
tatutes in point.
lusband and wife executed the following contractual agreement
v'ith a savings and loan association by signing a membership card
i^hich contained the following language: "The undersigned hereby
Igree with each other that the shares in association
>sued or standing in the name of us, whose names are signed below,
ither now or hereafter, and whether represented by certificates or
ccounts, are and shall be for the use and benefit of each and all
»f us as joint tenants with the right of survivorship and not as tenants
n common; and the said association is hereby authorized and
mpowered to pay from time to time, any part or all of the
withdrawal value of said shares or accounts to any or either of the
indersigned upon receipts signed by any or either one of us, or
ipon endorsement of any certificates for any part or all of said
-462-
shares by any or either of us."
G. S. 33-20 provides: "Every guardian shall take possession, for the
use of the ward, of all his estate, and may bring all necessary action
therefor.
"
"Assuming that the joint account of one who becomes incompetent
is not required to be broken up or is not acquired, under the existing
circumstances and law, by the other joint depositor, it is the general
rule that the guardian of the incompetent may withdraw from the
account only such funds as are necessary for the needs of the
incompetent, and acquires no title or general rights of election with
reference to the property." 62 A.L.R. 2d 1093, citing Howard v.
Imes, 265 Ala. 298, 90 So. 2d 818 (1956); Re Griffith, 33
Del. Ch. 387, 93 A2d 920 (1953); Johnson v. Nourse,
258 Mass. 417, 155 N.E. 457 (1927); Coolidge v. Brown,
286 Mass. 504, 190 N.E. 723 (1934); Drain v. Brookline Sav.
Bank, 327 Mass. 435, 99 N.E. 2d 160 (1951); Boehmer v.
Boehmer, 264 Wis. 15, 58 N.W. 2d 411 (1953).
In Howard v. Imes, supra, "The court, applying the general rule
that a guardian cannot exercise a purely personal elective right of
his ward, stated that it seemed clear that an act which required
the exercise of the personal right of the ward could not be performed
by the guardian, and that the making of periodic withdrawals for
the care and maintenance of the ward would constitute ministerial
acts, within the authority of the guardian, but that the termination
of the joint account and withdrawal of all the funds was a personal
right."
G. S. 33-39 requires that guardians file annual accounts with the
clerk of superior court and that the clerk carefully audit this account
and, if found correct, approve it. While there is no specific statutory/
procedure for the clerk to hear the claims of a guardian with respect
to the need of expending funds in a joint account for his ward,
it is suggested that under the clerk's general authority to supervise
the acts of guardians, the clerk has the authority to hold a hearing!
after notice to the other persons who own an interest in the joint
account, with the incompetent and to determine whether or not
the guardian is justified in spending a portion of the joint account!
of the ward's benefit. The clerk's decision should be forwarded tc
-463-
I
the institution where the joint account is maintained.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
4 August 1971
Subject:
Requested by:
Question:
Pubhc Officers & Employees; State
Employees; Workmen's Compensation Act;
Travel by Private Plane
Mr. W. P. Garris
Controller
State Highway Commission
Is a State employee, who is duly authorized
to travel by private plane on official State
business, entitled to receive the same
workmen's compensation benefits when so
travehng as he would otherwise be entitled
to when utilizing a privately owned
automobile?
Yes. A State employee is entitled to receive
the same workmen's compensation benefits
while traveling in a privately owned plane
on State business, when duly authorized to
do so, as he is entitled to receive while
travehng in a privately owned automobile.
The North Carolina Supreme Court in the case of Galloway v.
Department of Motor Vehicles, 231 N. C. 447, upheld a recovery
under the Workmen's Compensation Act for the injury and death
of two highway patrolmen who were using a private aircraft in the
performance of their duties. The Court in allowing recovery, stated
that there is nothing novel or unusual in the use of an airplane
for any purpose for which it is suitable.
Conclusion:
A6A-
An employee is entitled to benefits for injury or disability which
arise out of and in the course of his employment. Injuries which
arise out of and in the course of employment are those which occur
when the employee is engaged in some activity or duty which he
is authorized to undertake and which is calculated to further,
directly or indirectly, the employer's business. Clark v. Burton Lines,
Inc., 272 N.C. 433. This includes injuries suffered while travehng.
Martin v. Georgia-Pacific Corp., 5 N.C. App. 37. The method of
travel is not determinative of the benefits under the Workmen's
Compensation Act. State employees are treated the same under the
Workmen's Compensation Act as other employees engaged by private
enterprise. G. S. 97-2. Therefore, when a State employee is duly
authorized to travel by private plane, he is entitled to the same
benefits as an employee is entitled to when travehng in a privately
owned automobile. i
Robert Morgan, Attorney General
Eugene A. Smith,
- . Assistant Attorney General
6 August 1971
Subject: Infants & Incompetents; Minors; Public Officers
and Employees; Clerks of Superior Court;
Sheriffs; Issuance of Permit to Purchase Weapon
to 18, 19 and 20 Year Old Persons; G. S. 48A-1,
48A-2; G. S. 14-402, e^ se^. ,
Requested by:
Question
:
Mr. Isaac T. Avery, Jr.
Iredell County Attorney
Conclusion:
Since enactment of the "18 year old majority
act" (G. S. 48A-1, et seq.), does North Carohna
law prohibit a clerk of superior court or sheriff,
as the case may be, from issuing a so-called i
"pistol permit" to a person 18 years old or older?
No. However, before issuance, the issuing officer
-465- . .
should fully satisfy himself that the appHcant
requires the weapon for protection of the home.
Chapter 585, Session Laws of 1971, became effective July 5, 1971.
The Act provides as follows:
"§48A-1. Common law definition of 'minor'
abrogated -1)^0, common law definition of minor
insofar as it pertains to the age of the minor is hereby
repealed and abrogated.
"§48A-2. Age of minors.-k minor is any person who
has not reached the age of 18 years."
In some counties, the clerk of superior court issues so-called "pistol
permits"; in other counties, the sheriff. See Articles 52A and 53
I of Chapter 14 of the General Statutes. These statutes do not
; mention any quahfication which the appUcant has to have other
I than "good moral character" and that the weapon is "for protection
:; of the home." G. S. 14-404 and 14-409.3. The permit may be
i issued to "any person ... in any such county. ..." See
G. S. 14-403 and 14-409.2.
i In our opinion, North Carolina law does not prohibit a person 18
years or older from receiving a permit. The issuing official should
i satisfy himself that the weapon is for protection of the home. See
G. S. 14-404 and 14-409.3.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
6 August 1971
\ Subject: Criminal Law and Procedure;
G. S. 14-269.2; Education; School Law,
Generally; Possession of Weapons by
' Faculty Members of Schools in Homes of
A66-
Faculty Members Located on School
Property.
Requested by: Mr. Prit chard C. Smith, Director
Traffic, Safety and Security
Western Carolina University
Question: Is it a violation of G. S. 14-269.2, which
prohibits the possession of certain weapons
on school property, for a faculty member
of the school to have a shotgun, rifle or
pistol in his home, the home being owned
by and located on property of a pubhc or
private educational institution?
Conclusion: No.
G. S. 14-269.2, enacted as Chapter 241 by the 1971 Session of
the General Assembly, provides in part: "It shall be unlawful for
any person to possess, or carry, whether openly or concealed, any
gun, rifle, pistol, ... or any other weapon of hke kind, not used
solely for instructional or school sanctioned ceremonial purposes,
in any pubUc or private school building or bus, on any pubhc or
private school campus, grounds, recreation area, athletic field, or
other property owned, used or operated by any board of education,
school, college, or university board of trustees or directors for the
administration of any public or private educational institution. . .
."
{Emphasis added.)
It is a commonly accepted rule of statutory construction that "...
statutes imposing a penalty, or creating criminal offenses, must be
strictly construed." Strong, N. C. Index 2d, Statutes, sec. 5, citing
numerous decisions of the North Carolina Supreme Court.
G. S. 14-269.2 does not specifically list buildings or school property
used for private dwelhngs.
A companion statute, G. S. 14-269, prohibits, with exceptions not
pertinent here, the carrying of certain weapons concealed about
one's person "except when on his own premises". There is no
indication in G. S. 14-269.2 to change this provision of
G. S. 14-269. Furthermore, under the law of this State, a person
-467- ii
has the right to defend himself in his home, State vs. Pennell,
232 N. C. 573, 61 S.E. 2d 593, and his family, State vs. Hodges,
255 N. C. 566, 122 N. C. S.E. 2d 197.
Li 1902 the North Carolina Supreme Court in State vs. Goode,
130 N. C. 651 at page 654, quoted with approval Sir Edward
Coke's famous statement "A man's house is his castle". All
indications are that this statement is still the law in this State. In
our opinion, G. S. 14-269.2 does not prohibit the possession of
a shotgun, rifle or pistol in the home of a faculty member who
lives in a home owned by and located on property of a pubUc or
private educational institution.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
6 August 1971
Subject:
Requested by:
Question
:
Conclusion:
Agriculture; Public Records, Compulsory
Meat Inspection Act; G. S. 132-1,
106-549.5, et se£.
Mr. John L. Reitzel
Assistant Commissioner of
Agriculture
Are records made by State employees of
a meat packing plant which is under State
inspection "public records" and thus
subject to inspection and copying by the
pubhc?
Such records are "pubHc records" if they
were made and received pursuant to law
by the Department of Agriculture in the
transaction of public business.
^68-
Recently members of the press have asked the Department of
Agriculture to open for inspection records of the Department
received in Raleigh from State employees who are inspectors of meat
packing plants which plants are subject to State inspection pursuant
to Articles 49B and 49C of Chapter 106 of the General Statutes
(the Compulsory Meat Inspection Act). These records typically
report on the degree of compUance by individual packing plants
with the sanitation and other technical requirements of the
Compulsory Meat Inspection Act. The records reflect, inter alia,
physical conditions observed

THE LIBRARY OF THE
UNIVERSITY OF
NORTH CAROLINA
THE COLLECTION OF
NORTH CAROLINIANA
C3iiO
N87a ,
1970/72
v.Ul no,3-U
UNIVERSITY OF N.C. AT CHAPEL HILL
00033947178
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
r
Digitized by tine Internet Arciiive
in 2011 with funding from
Ensuring Democracy tiirougii Digital Access (NC-LSTA)
http://www.archive.org/details/northcarolinaatt19711972
^oua;;^^
NORTH CAROLINA
ATTORNEY GENERAL REPORTS
VOLUME 41
Number 3
ROBERT Morgan
ATTORNEY GENERAL
41 N.C.A.G.- No. 3 Pages 420 to 707
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1971 through December 31, 1971
MAILING ADDRESS:
P. O. Box 629, Raleigh, N.C. 27602
ROBERT MORGAN
Attorney General
Harry W. McGalliard
Chief Deputy Attorney General
Ralph Moody
Special Counsel
Jean A. Benoy Andrew A. Vanore, Jr.
James F. Bullock Robert Bruce White, Jr.
Deputy Attorneys General
Carroll Leggett
Special Assistant Attorney General
H. H. Weaver
Special Assistant
Myron C. Banks Parks H. Icenhour
James L. Blackburn I. Beverly Lake, Jr.
William F. Briley Richard N. League
Lester Chalmers James E. Magner, Jr.
H. Al Cole, Jr. William W. Melvin
T. Buie Costen Burley B. Mitchell, Jr.
Christine Y. Denson William B. Ray
Sidney S. Eagles, Jr. " Millard R. Rich, Jr.
Roy Andre Giles, Jr. James B. Richmond
Edward L. Eatman, Jr. Henry Thomas Rosser
Eugene Hafer Jacob L. Safron
Guy A. Hamlin , Howard P. Satisky
Claude Harris / . , Eugene A. Smith
Ladson F. Hart Robert S. Weathers
Charles M. Hensey =:-: 603
Labor; Minimum Wage Act; Amendment to G. S. 95-87;
Part Time Employees Working Sixteen Hours or
Less Per Week in Estabhshment Having Three
or Less FuU Time Employees; Counting Employees
for Basic Coverage Under the Minimum Wage
Act ' 438
Licenses & Licensing; Plumbing and Heating
Contractors; Submission of Bid as Engaging
in Plumbing and Heating Contracting;
Penalties 673 I
Licenses & Licensing; Private Detectives;
Requirement for Licensing and Bond;
Article 9A, G. S. 66 552
Licenses & Licensing; Professional Engineers
and Surveyors; Unlawful Use of Seal 423 '
Licenses & Licensing; Real Estate Licensing
Board; Licensing North Carolina Residents
Who Become Non-residents; Reciprocity;
G. S. 93A-4 and G. S. 93A-9 531
Marriage and Divorce; Divorce; Jury Trial;
Waiver Pursuant to G. S. 50-10 in Cases
Involving Personal Service 473
Mental Health; Commitment to State Mental
Institution; Waiver of Hearing Before Clerk 564
Mental Health; Courts; Responsibility for
Transporting Mental or Inebriate Patients
to Hospitals 457
Motor Vehicles; Bumper Specifications; Private
1^1 Passenger Automobiles; G. S. 20-135.4 677
Motor Vehicles; Drivers
ResponsibiUty Act of 1953; Hearings 420
Motor Vehicles; Drivers
Driving Privilege
I
Motor Vehicles; Drivers
Driving Privilege
Motor Vehicles; Drivers
Driving Privilege;
Motor Vehicles; Drivers
Licenses; Financial
Licenses; Limited
535
Licenses; Limited
706
Licenses; Limited
Permit; G. S. 20-179 659
Licenses; Restricted
Driving Privileges; G. S. 20-179(b)(l) 596
Motor Vehicles; Nonresident Defendants; Service
of Process on Commissioner of Motor Vehicles;
Acceptance of Service 567
Motor Vehicles; Pedestrians Soliciting Rides,
Employment, Business or Funds Upon Highways or
Streets 528
Motor Vehicles; Taxicabs; Marking Under
G. S. 20-101 Not AppUcable to Taxicabs 547
Municipalities; Building Code; Plumbing Code;
Master Plumbers 477
Municipalities; Contracts; Inclusion of Sales
Tax as "Expenditure of Public Money";
G. S. 143-129; 105-164.7; 105-164.14(c) 479
Municipalities; Police; Special Policemen;
Jurisdiction of Morehead City Police on
State Property Within City Limits; North
Carolina State Ports Authority; Authority of
Town of Morehead City to Legislate by
Municipal Ordinance Within Geographical Area
Owned by Ports Authority 433
Pollution; Air Pollution Control Program, Local;
G. S. 143-215.3(aXll); Responsibility for
Prosecution of Violations of Local Air
Pollution Ordinances 519
Prisons and Prisoners; Hard Labor as Punishment
Prohibited; Prisoners May Be Employed 440
Prisons and Prisoners; Parole; Citizenship
Restored . 426
Public Officers & Employees; Conflict of
Interest; County Commissioner's
Authorization of Food Stamp Program in
County Where Two Commissioners Are
Merchants Who Could Derive Benefit from
the Program . 530 i
Public Officers & Employees; County Social '
j
Services; Salary of County Director;
Apphcability of State Persormel Act;
Authority of Board of County Commissioners » 696
Pubhc Officers & Employees; Double Office
Holding; Constitutional Construction;
G. S. 128-1.1; Article VI, Section 9,
North CaroUna Constitution; U. S. Postal «
Employees 633
PubUc Officers & Employees; Holding Over; State
Board of Assessment; G. S. 105-288 458
Public Officers & Employees; Notaries Public;
Fees; Form of Seal, Oath of Office; Persons
18 Years of Age May be Notary 435
PubUc Officers & Employees; Register of Deeds;
Appointment of Assistant or Deputy Registrar;
Person 18 Years of Age or Over May be
Appointed as Deputy or Assistant Register
of Deeds 476
Public Officers & Employees; State Employees;
Workmen's Compensation Act; Travel by
Private Plane 464
Public Officers & Employees; University of
North Carolina, Board of Governors;
Officers and Employees of State Not
EUgible To Serve; G. S. 116-7 623
Rules of Civil Procedure; Rule 27(b); Clerk's
Authority to Order Deposition to Prepare
a Complaint 618
Rules of Civil Procedure; Verification of
Complaint; Default Judgment; G. S. 1-75.11 625
Social Services; Adoption of Minors; Effect of
Statutory Change in Definition of a Minor 599
Social Services; Aid to Famihes With Dependent
Children; Payments on Behalf of Persons Who Are
Over Eighteen Years of Age and Who Are
Undergoing a Course of Study or Training 593
Social Services; Family Assistance Program;
Contracts for the Handling of the Family
Assistance Program , 698
Social Services; Medical Assistance; Frequency
of Payments by the State; Reimbursement by
the County for Their Share of Medical
Assistance Costs 615
Social Services; Medical Assistance; Nursing
Home Services Provided by Hospitals; North
CaroUna Appropriations Act of 1971;
AppUcability of the Limitation of "Allowable
Costs Up to $14.00 Per Day" 541
Social Services; Mental Institutions; Legal
Settlement 472
Social Services; Nursing Homes; County Fiscal
Control Act; Requirements for Identifying
Nature of Payments 557
Social Services; Nursing Homes; Social Security
Act; Medical Assistance, Counties and
County Commissioners; Guaranteeing of
AvailabiUty of Beds 555
State Departments, Institutions & Agencies;
Capital Building Authority; Department of
Administration 421
State Departments, Institutions & Agencies;
Correction, Department of; Police Protection 582
State Departments, Institutions & Agencies;
Credit Reporting; AppUcation of Fair
Credit Reporting Act to State Agencies 654
State Departments, Institutions & Agencies;
Mental Health; Consent for Medical Treatment;
Provisions of G. S. 110-20.1 Regarding
Exhibition of Certain Children and Television
Coverage 590
State Departments, Institutions & Agencies;
Mental Health; Cost of Care and Treatment
of Inmates; Parental Liability 507
State Departments, Institutions & Agencies;
Mental Health; Costs of Care and Treatment
of Inmates; Parental Liability; Eighteen-Year-Olds 662
State Departments, Institutions & Agencies; Mental
Health; Liability of Inmate of State Mental
Hospital for Cost of Care, Treatment and
Maintenance
State Departments, Institutions & Agencies;
Mental Health; Suspended Sentences; Liability
of Inmate for Cost of Care and Treatment
State Departments, Institutions & Agencies;
Natural and Economic Resources, Department
of; Title VIII - Housing Act of 1964;
Community Development Training Program;
G. S. 143A-128
State Departments, Institutions & Agencies;
Ports Authority; Contractual and Tort
Liability; Liability Insurance
State Departments, Institutions & Agencies; ^
Reorganization; Executive Organization
Act of 1971; Continuation of Statutory
Exemption of Certain State Employees From
the State Persormel Act
State Departments, Institutions & Agencies;
Reorganization; Secretary of State;
Transfer of the State Board of Elections
by a Type II Transfer to the Dept. of the
Secretary of State; Powers & Duties of the ;
Secretary of State; Article 2 of Ch. MSA
of the General Statutes
State Departments, Institutions & Agencies; , ,
Tort Liability; North Carolina State Ports
Authority; Liabihty Insurance
State Departments, Institutions & Agencies;
Zoological Authority; Real Property;
Responsibility of Department of Administration
With Respect to Real Property in Which
the N. C. Zoological Authority Has an Interest
Streets and Highways; Highway Fund; License
Plates; Use of Funds From Sale of Personalized
License Plates
Streets and Highways; Municipalities; Powell
Bill Funds; Expenditure for Drainage
Purposes
Streets and Highways; Paving of Driveways to
- Rural Fire District Firehouses; State
Highway Commission
%
Streets and Highways; State Highway Fund;
Municipalities; Powell Bill Funds;
G. S. 136-41.1 as Amended by Chapter 182,
1971 Session Laws 518
Streets and Highways; State Property; Closing
Public Streets in Butner 576
Taxation; Ad Valorem; Bank Vault Doors, Vault
Ventilators, Safe Deposit Boxes, Night
Depositories, Drive Up Windows of Banks 558
Taxation; Ad Valorem; Change in Valuation;
Power of Tax Supervisor After Board of
Equalization and Review Adjoums;
G. S. 105-325(aX6); G. S. 105-325(b);
G. S. 105-2960) 514
Taxation; Ad Valorem; Collection; Levy on
Merchant's Personal Property Transferred
Before Payment of Tax; Personal Liability
of Purchaser; G. S. 105-366(d) 482
Taxation; Ad Valorem; Collection of Taxes;
Tax Liens; Limitation of Actions;
G. S. 105-422 431
Taxation; Ad Valorem; Execution; Description
of Property in Execution; G. S. 105-392 427
.Taxation; Ad Valorem; Exemptions; Real Property
Belonging to Non-profit Medical Foundation;
G. S. 105-278 (Formerly G. S. 105-296 - See
Chapter 806, Session Laws of 1971, New Machinery
Act) 455
Taxation; Ad Valorem; Exemptions; Real Property;
Building Owned by Nonprofit Medical Development
Authority and Leased to Private Practitioner
Doctors; G. S. 105-278; Medical Care
Commission Hospital Facilities Finance Act,
G. S. 131-140, G. S. 131-158 583
Taxation; Ad Valorem; Liens; Motor Vehicles;
Priority of Ad Valorem Taxes Over Prior
Perfected Liens and Security Interests 692
Taxation; Ad Valorem; Public Service Companies;
Broadcast Stations; State Board of
Assessment; G. S. 105-333(1) 702
Taxation; Ad Valorem; Situs; Cars Used by
Executives of Corporation; G. S. 105-304(h)(2) 688
Taxation; Ad Valorem; Tax Collectors; Appointment
of Tax Collectors; Effect of Local Acts;
G. S. 105-349 and G. S. 105-395(c)
Taxation; Ad Valorem; Waiver of Interest;
G. S. 105-355(a)
Taxation; Gasoline Tax; Refunds; Redevelopment
Commissions; G. S. 105-446.1
Taxation; Inheritance Tax; Exemptions,
Great-Grandchildren; G. S. 105^
Taxation; Privilege License Taxes; City Ordinance
Imposing License Tax on Storage Warehouses
Taxation; Privilege License Tax; Going Out of
Business License Tax; G. S. 160-56
Taxation; Real Estate Excise Stamp Tax;
Consideration; Conveyance of Real Property
in Exchange for Reciprocal Conveyance of
Real Property; G. S. 105-228.29
Taxation; Real Estate Excise Stamp Tax; Voluntary
Partitions of Realty; Exchanges of Realty;
G. S. 105-228.28, G. S. 105-228.29,
G. S. 105-228.30 and 1971 Treas. Reg.
§ 47-4361 -2(bX7)
Taxation; Refund of Taxes; Statute of Limitations;
G. S. 105-266 and G. S. 105-155
Taxation; Sales & Use Tax, County; Distribution
of Proceeds to Municipalities; Pinehurst;
G. S. 105-472
Taxation; Sales & Use, State; Exemptions; Crushed
Stone; Sand; G. S. 105-164.13(3)
Water Resources; Contracting Debt for Authority
of State and Local Govemment
1 July 1971
ubject:
Lequested by:
Question:
Conclusion:
Motor Vehicles; Drivers' Licenses; Financial
Responsibility Act of 1953; Hearings
Senator Clyde Norton
Under the recent U. S. Supreme Court
Opinion in Bell v. Burson (No. 5586,
Decided May 24, 1971), must the
Financial Responsibility Act of 1953
(G. S. 20-219A et seq.) be amended to
provide hearing on the question of liability
prior to suspension of operator's hcense in
order to comply with constitutional
requirements of due process?
Due to the inconclusiveness of the Supreme
Court opinion and differences between the
North Carohna Act and the Georgia Act,
it appears that our method of judicial
review would probably comply with the
requirements stated by the court.
G. S. 20-279.2 requires the Commissioner of Motor Vehicles to
"provide for hearings upon request of persons aggrieved by orders
or acts of the Commissioner under the provisions of this article."
No hmit is set upon the procedure of the hearing. Apparently,
Georgia hmited its administrative hearing, refusing to consider the
issue of UabiUty.
While Georgia provided for immediate judicial review, the fiUng of
a petition for such review did not "act as a supersedeas of any
orders or acts of the Director." Bell v. Burson, supra, (page 3, fn
1). In North Carolina, the filing of a petition for judicial review
acts as a supersedeas and petitioner may continue to drive until
disposition of the action upon its merits against petitioner's interest
and similar disposition of any appeal to the Appellate Division. See
G. S. 20-279. 2(b). Liabihty is an issue in this judicial review. See
G. S. 20-279.2(b).
-420-
In Bell V. Burson, supra, (p. 4) the court suggested alternative
methods of compUance with constitutional requirements to Georgia,
saying:
"We hold, then, that under Georgia's present statutory
scheme, before the State may deprive petitioner of his
driver's Hcense and vehicle registration, it must provide
a forum for the determination of the question whether
there is a reasonable possibiHty of a judgment being
rendered against him as a result of the accident. We
deem it inappropriate in this case to do more than
lay down this requirement. The alternative methods
of compliance are several. Georgia may decide merely
to include consideration of the question at the
administrative hearing now provided, or it may elect
to postpone such a consideration to the de novo
judicial proceedings in the Superior Court."
It appears that our method of judicial review would probably comply
with one alternative suggested by the court.
Robert Morgan, Attorney General
T. Buie Costen,
Assistant Attorney General
1 July 1971
Subject:
Requested by:
Questions:
State Departments, Institutions &
Agencies; Capital Building
Authority
;
Department of
Administration
Mr. Carroll L. Mann, Jr.
State Property Control and
Construction Officer
(1) Does the Department of
Administration per se come within
-421-
the jurisdiction of the North
Carolina Capital Building Authority?
(2) Do all other State agencies and
institutions whose governing or
controlHng body is located in
Raleigh come within the jurisdiction
- ' of the North Carolina Capital
Building Authority?
Conclusions: (1) Yes. G. S. 129-42.1 excludes
only the North Carolina State
University and Dorothea Dix
Hospital from the jurisdiction of the
North CaroHna Capital Building
Authority, for planning and
construction of capital improvement
projects in the City of Raleigh and
its environs by all State agencies and
institutions.
(2) Yes. However, with the
exception of those State agencies
and institutions specifically listed in
G. S. 129-42.1 and those which by
choice elect to come under its
authority, the Capital Building
Authority has jurisdiction only of
planning and construction of capital
improvement projects in Raleigh and
environs by State agencies.
The original authority of the North CaroHna Building Authority
granted by Chapter 994 of the 1967 Session Laws extended only
to capital improvement projects in the City of Raleigh and its
environs constructed by State agencies. 40 NCAG 732. Chapter 1 12
of the 1969 Session Laws amended G. S. 129-42 to add "and all
other State agencies which may be brought under this article or
which may come under this article by choice."
Chapter 112 of the 1969 Session Laws also added G. S. \29A2.\
All-
which provides in part as follows: "The North Carolina Capital
Building Authority shall exercise those powers and duties set forth
in G. S. 1 29-42 for the following agencies and institutions of the
State of North Carolina and any other State agency or institution
which may come under this article by choice and upon notification
to the authority in writing: the North Carolina Department of
Correction, the North Carohna School for the Deaf, the Eastern
North Carolina School for the Deaf, the Governor Morehead School,
the North Carolina Department of Motor Vehicles, the North
Carolina Sanatorium System. . .and all State agencies in the City
of Raleigh and its environs with the exception of North Carolina
State University and Dorothea Dix Hospital." (Emphasis added.)
Chapter 112 of the 1969 Session Laws extended the power and
duties to include the specific agencies and institutions enumerated
and to allow other agencies and institutions to avail themselves of
its services. 40 NCAG 732. Although the governing bodies of the
Department of Correction and the Department of Motor Vehicles
are located in Raleigh, it is apparent they were specifically included
for the purpose of granting jurisdiction for the planning and
construction of capital improvements by these agencies constructed
outside of Raleigh and its environs as well as inside Raleigh.
G. S, 129-42.1 excludes from the jurisdiction of the North Carolina
Capital Building Authority over planning and construction of capital
improvements in Raleigh and its environs only North Carolina State
University and Dorothea Dix Hospital. Therefore, the Department
of Administration comes within the jurisdiction of the Capital
Building Authority.
Robert Morgan, Attorney General
Eugene A. Smith,
. Assistant Attorney General
12 July 1971
Subject: Licenses & Licensing; Professional
Engineers and Surveyors; Unlawful Use of
Seal
-423- ;
Requested by: ^ Mr. B. A. Saholsky, Exec. Sec.
N. C. State Bd. of Registration for
Professional Engineers and Land Surveyors
Question
:
What is the extent of supervision required
of a registrant to enable him to legally seal
and sign plans prepared by others without
violating G. S. 89-10?
Conclusion: The extent of supervision is not prescribed
by G. S. 89-10; however, the supervision
must be direct - meaning a person
employed by and under control of the
registrant.
G. S. 89-10 provides that: "It shall be unlawful for any registrant
to stamp or seal with said seal any documents other than those
'prepared by, or under the direct supervision of the registrant
.^^
{Emphasis added) G. S. 89-10 does not prescribe the extent of the
supervision required. However, it does prescribe that the supervision
must be direct.
"Direct" is defined by Webster's Seventh New Collegiate Dictionary
as being marked by the absence of an intervening agency,
instrumentality, or influence. It states that "direct suggests an
unbroken connection or a straight bearing of one upon or toward
another." It is the opinion of this Office that the phrase "under
the direct supervision of" as used in G. S. 89-10 contemplates a
person who is employed by the registrant and who is under the
direct control of the registrant.
Robert Morgan, Attorney General
James E. Magner,
Trial Attorney
12 July 1971
Subject: Criminal Law & Procedure; Search and Seizure
Search Warrants
-424-
Requested by: The Eden Police Department
Question: When one police squad is at the back door of
a house with a vahd search warrant and another
squad, without a warrant, enters the front door
before the squad at the back door gains entrance,
is the evidence obtained as a result of the search
admissible in court?
Conclusion: No.
i
G. S. 15-27(a) provides: "No evidence obtained by means of an
illegal search shall be competent as evidence in any trial."
It appears from the facts that the officers who entered the house
first made no demand for entrance. G. S. 15-44 provides
circumstances under which a law enforcement officer may break j
and enter into houses: "If a felony or other infamous crime has!
been committed, or a dangerous wound has been given and there
is reasonable ground to believe that the guilty person is concealed
in a house, it shall be lawful for any sheriff, coroner, constable,
or police officer, admittance having been demanded and denied, to
break open a door and enter the house and arrest the person against
whom there shall be such ground of behef.
" Since the requirements
of the statute were not met in our factual situation, the entry by
the officers was forbidden and any evidence seized by the officers
would be subject to the exclusionary rule of G. S. 15-27. In
discussing the "demand" requirement of G. S. 15-44, the court, in
S. V. Covington, 273 N. C. 690, said that compHance with the
requirement "is for protection of the occupant and the recognition
of his constitutional rights."
The facts presented indicate that the officers walked through an
open front door. In S. v. Howard, 274 N. C. 188, the court offers
dictum which indicates that where no forcible entry is made, the
provisions in G. S. 15-44 do not apply. However, in S. v. Howard,
the officer saw "suspicious objects in plain sight" through an open
door. Also, the officer in Howard had a right under G. S. 15^1(2)1
to arrest the defendant without a warrant and to enter the room
for that purpose. The facts in the Howard case are distinguishable
from the facts set out in the question presented.
^25-
Die fact that the officers at the back door had a search warrant
would not insulate the wrongful entry by the officers and will not
render the evidence competent.
'Although the entry by the officers was forbidden, they were not
guilty of "breaking and entering the man's home." An action in
trepass may he.
Robert Morgan, Attorney General
Wilham W, Melvin,
Assistant Attorney General
12 July 1971
Subject: Prisons and Prisoners; Parole; Citizenship
Restored
Requested by: Mr. Charles B. Winberry, Jr.
Attorney at Law
Question: When seeking to have rights of citizenship
restored under Chapter 13 of the General
Statutes of North Carohna, does the phrase
"date of discharge" as used in G. S. 13-2
V. refer to the date on which a petitioner was
placed on parole or until he was officially
discharged from parole?
Conclusion: When a petitioner seeks to have rights of
citizenship restored, the phrase "date of
discharge" as used in G. S. 13-2 refers to
< the date on which the petitioner was
officially discharged from parole.
Under G. S. 13-2, a person convicted of an infamous crime may
petition the superior court to be restored of his rights of citizenship
at any time after the expiration of two years from the "date of
discharge" of the petitioner. To discharge is to release from
confinement or custody.
-426-
The sentence under which a parolee was paroled is not terminated
until officially discharged by the Board of Paroles.
G. S. 148-58.1 (a). Prior to discharge parole may be revoked and
the parolee returned to the appropriate penal institution.
G. S. 148-61.1.
Conditions of parole are a restraint upon a parolee's liberty not
shared by the pubhc generally. He is still under the supervision of
the parole authorities and subject to be remanded if he fails to
perform or violates the conditions of the parole. State v. Rhinehart,
267 N. C. 470, 480, 148 S. E. 2d 651 (1966).
Therefore, a person may petition to have his rights of citizenship
restored at any time after two years from the date of his official
discharge by the Board of Paroles.
Robert Morgan, Attorney General
; • V . Edward L, Eatman, Jr.,
Staff Attorney
14 July 1971
Subject:
Requested by:
Questions:
Taxation; Ad
Description of
G. S. 105-392
Valorem
;
Property in
Execution;
Execution;
Mr. Edwin Roland
Ashe County Tax Collector
(1) Is the clerk of superior court
authorized to issue executions pursuant to
G. S. 105-392 when proper tax
certificates are filed by the collecting
official and a certified copy of a resolution 1
of the county commissioners or the
'
governing body of a municipality
authorizing the filing is also filed with the
clerk?
-^27-
(2) When execution is issued pursuant to
G. S. 105-392, should the execution
contain a description of the property to be
executed upon?
Conclusions: (1) The clerk of superior court is
authorized to issue execution pursuant to
G. S. 105-392 when proper tax
certificates are filed and a certified copy
of a resolution of the county
commissioners or the governing body of a
municipahty authorizing the filing by the
collecting officer is also filed with the clerk
of superior court.
(2) When execution is issued pursuant to
G. S. 105-392, the execution should
include a description of the property which
is the subject matter of the execution.
Jnder G. S. 105-392, the collecting official, Le^, tax collector or
jupervisor, is authorized to file tax certificates with the clerk of
superior court and have the certificate docketed as judgments, and
execution issued thereon in due course. It is the better practice for
the clerk to require the collecting official to file a certified resolution
instructing the collecting official to file the certificates. G. S, 153-1.
The execution provided in G. S. 105-392 is a special execution.
A special execution is an execution "that directs a levy upon some
special property." Black's Law Dictionary (4d), West Publishing Co.
(1951) at p. 1570. One authority states as follows:
"When a judgment is directed against particular
property, the execution should conform to the
judgment by designating such property as the property
to be levied on. Where a writ against specific property
is proper, the description should sufficiently identify
the property. However, a description although loose,
which follows the judgment is not void for
uncertainty. It has been held sufficient to designate
the property as that recovered in the suit, where it
^28-
is described in the judgment." at
33 C.J.S. Executions § 77(b) (1942).
p. 218,
Also see: 2 Mcintosh, North Carolina Practice and Procedure,
Execution § 1907 (1956), and 30 Am. Jur. 2d Executions § 28
and § 71 (1967). Therefore, it would be the better practice to
include a description of the real property in the body of the
execution or to incorporate by reference a copy of the judgment
or certificate containing a description of the property. When the
description is incorporated by reference, a copy of the judgment
or certificate should be physically attached to the execution.
Physical attachment would assure a proper incorporation by
reference and would be for the convenience of the sheriff in
executing the writ.
Robert Morgan, Attorney General
'
' Myron C. Banks,
Assistant Attorney General
Ronald M. Price,
Staff Attorney
14 July 1971
Subject:
Requested by:
Questions:
Taxation; Privilege License Tax; Going Out
of Business License Tax; G, S. 160-56
Mrs. Gwen Waters
Tax Collector for the
City of Lenoir
(1) May a municipality levy a "going out
of business sale" Hcense tax?
(2) May a municipahty simultaneously
levy upon a merchant a hcense tax for
holding a "going out of business sale"
under G. S. 160-56 and a schedule "B"
Hcense tax or a general mercantile hcense
tax?
-429-
Conclusions: (1) A municipality may levy a "going
out of business sale" license tax.
(2) A municipality may simultaneously
levy a "going out of business sale" license
tax under G. S. 160-56 and a schedule
• "B" license tax and a general mercantile
license tax.
I Municipalities may levy a tax on all trades, professions, and
i franchises carried on or engaged within the city (G. S. 160-56).
); MunicipaUities have the power to classify business activities for
[.'taxation. In making the classifications, uniformity must be observed,
and the classification of different subjects must have a rational basis
for the distinction and all persons similarly circumstanced must be
treated alike. Kenny Company v. Brevard, 217 N. C. 269 (1940),
and Belk Brothers V. Maxwell, 2\ 5 N. C. 235 (1937). Municipahties
are authorized to levy certain named taxes under schedule "B" of
the Revenue Act, which is independent of their general taxing
authority under G. S. 160-56. As long as there is a rational and
reasonable difference between the two activities, a municipahty may
levy the taxes simultaneously.
The "going out of business sale" tax, as well as fire and bankruptcy
sale hcense taxes are generally recognized as vahd levies. They are
generally considered a valid exercise of a municipahty 's police power.
I People V. Jenkins, 140 App. Div. 786, 125 NYS 817 (1910), aff'd
as to imposition of tax 202 NY 53, 94 NE 1065(1911); City of
Miami Beach v. Burke, 185 So. 2d 720(1966); and McQuillin,
Municipal Corporations (3d), Taxation § 26.42(1964). The court
in People v. Jenkins, supra, said:
"It is fairly within the police power to protect the
people from fraud and deception, and this statute is
evidently intended to protect the pubhc from a
fraudulent business." at p. 818.
The imposition of a license tax for conducting a "going out of
business sale" under authority of G. S. 160-56 is substantially
different from a Hcense tax imposed for general mercantile activities,
those activities taxed under schedule "B" of the Revenue Act.
-430-
Consequently, a municipality may impose a license tax
simultaneously on a "going out of business sale," general mercantile
and schedule "B" activities.
Robert Morgan, Attorney General
I. Beverly Lake, Jr.,
Assistant Attorney General
Ronald M. Price,
Staff Attorney
20 July 1971
Subject:
Requested by:
Question:
Conclusion:
Taxation; Ad Valorem; Collection of!
Taxes; Tax Liens; Limitation of Actions;:
G. S. 105-422
Mr. J. Bourke Bilisoly
Wake County Tax Attorney
Do the provisions of G. S. 105^221
preclude a county from instituting am
action to collect taxes or to enforce tax
liens more than ten years from the time
such taxes become due?
No. G. S. 105-422 is a statute ofi
limitations which must be pleaded in
defense of an action to collect taxes or to
enforce tax liens instituted more than ten
years from the time such taxes became due.
Inquiry has been made as to whether a county may bring suit to
collect taxes or enforce tax liens, when more than ten years have
elapsed from the time such taxes became due. Reference must be
made to G, S. 105-422. Although entitled "Tax Liens Barred", the
statute actually provides in part as follows:
"No action shall be maintained by any county or
-431-
municipality to enforce any remedy provided by law
for the collection of taxes or the enforcement of any
tax liens held by counties and municipalities, whether
such taxes or tax hens are evidenced by the original
tax books or tax sales certificates or otherwise, unless
such action shall be instituted within ten years from
the time such taxes became due...."
"while the title of the section and the beginning of the first sentence
("No action shall be maintained ... unless ...") seem to imply a
condition precedent, a comparison with the language of other
statutes readily identifiable as statutes of limitation clearly suggests
that G. S. 105-422 is simply a statute of limitations. For example,
G. S. 1-15 provides that "civil actions can only be commenced ..."
within stated periods; G. S. 1-35 provides that "the State will not
sue for, or in respect of, any real property ..." where adverse
possession has continued for thirty years; and G. S. 1-46 provides
that "the periods /or the commencement of actions, other than for
the recovery of real property, are as set forth ..." in the sections
following G. S. 1-46. In addition, the Supreme Court, in Iredell
County V. Crawford, et al, (1946) 262 NC 720, 138 SE 2d 539,
repeatedly referred to G. S. 105-422 as a "statute of limitations".
Therefore, we conclude that G. S, 105-422 is indeed a statute of
limitations, and to be available as a defense against actions to collect
taxes or enforce tax liens instituted more than ten years from the
time such taxes became due, the statute must be specifically pleaded
by the defendant in his answer.
Iredell County v. Crawford, et al, supra.
Whether suits to collect such taxes and to enforce such tax Hens
should be brought would appear to be a policy question, the
determination of which rests within the sound discretion and good
judgment of appropriate county and municipal officials.
Robert Morgan, Attorney General
Myron C. Banks,
Assistant Attorney General
-432-
20 July 1971
Subject:
Requested by:
Questions:
Conclusions
:
Municipalities; Police; Special Policemen;
Jurisdiction of Morehead City Police on
State Property Within City Limits; North
Carolina State Ports Authority; Authority
of Town of Morehead City to Legislate by
Municipal Ordinance Within Geographical
Area Owned by Ports Authority.
Mr. George H. McNeill
Morehead City Town Attorney II
(1) Do the Morehead City poHce have
concurrent jurisdiction with special
poHcemen appointed by the Ports
Authority within the geographical
boundaries of Ports Authority property
inside city limits?
(2) Does G. S. 143-2 24(c) pre-empt thelj
right of the Town of Morehead City toi
legislate by municipal ordinance within the
premises of the Ports Authority?
|
(1) By virtue of G. S. 160-21, thej
Morehead City poUce have concurrents
jurisdiction with special policemen;
appointed by the Ports Authority on Ports?
Authority property inside city limits.
(2) G. S. 143-224(c) pre-empts the right
(
of the Town of Morehead City to legislate:
by municipal ordinance in certain instances
within the geographical area owned by the
Ports Authority.
Under G. S. 143-224(d) the Executive Director of the North Carolina
State Ports Authority is authorized to appoint special poHcemen,
who, when so appointed, shall have all the powers of the police
of incorporated towns. The property and facilities of the Ports
^33-
Authority are located inside the Morehead City town hmits. It is
the understanding of this office that the streets and alleys located
bn the property of the Ports Authority are not a part of the
Morehead City street system nor a part of the State Highway system.
In this State, the powers and duties of pohcemen and the territorial
limits within which such powers may be exercised are prescribed
by statute. G. S. 160-21 provides that pohcemen shall have the same
authority to make arrests and to execute criminal process, within
the town limits, as is vested by law in a sheriff. For the purpose
of preventing a breach of the peace or other crime, a pohceman
may enter either pubhc or private property. State v. Wray, 217 N.C.
167, 7 S.E. 2d 468 (1940).
G. S. 143-224(d) does not provide that the special pohcemen
appointed by the Ports Authority shall have exclusive jurisdiction
within the boundaries of Authority property. In the absence of such
a provision, G. S. 160-21 would be controlhng and Morehead City
policemen would have concurrent jurisdiction on property owned
by the Ports Authority within city hmits.
Generally speaking, the property of a state is exempt from municipal
legislation in the absence of a waiver on the part of the state to
regulate its own property. 62 C.J.S., Municipal Corporations,
sec. 157. The state, when creating municipal governments, does not
cede to them any control over the state's property situated within
them, or over any property which the state has authorized another
body or power to control. 56 Am. Jur. 26., Municipal Corporations,
Etc., sec. 546.
G. S. 143-224(b) provides that the provisions of Chapter 20 of the
General Statutes relating to the use of highways of the State and
the operation of motor vehicles shall be apphcable to the streets,
alleys and driveways on properties owned by or under the control
of the Ports Authority. The statute then provides, "Nothing herein
contained shall be construed as in any way interfering with the
ownership and control of such streets, aheys and driveways on the
properties of said Authority as is now vested by law in said
Authority." G. S. 143-224(c) authorized the Ports Authority to
make additional rules, regulations and adopt additional ordinances
with respect to the use of the streets, aheys, driveways and the
-434-
establishment of parking areas and relating to the safety and welfare !
of persons using the property of the Ports Authority. The clear \
intention of these provisions is to vest in the Ports Authority the
exclusive power to regulate and control the use of those properties
lying within the boundaries of the Ports Authority. !
It is therefore concluded that the Morehead City police have
concurrent jurisdiction with the special pohcemen of the Ports
Authority within the geographical boundaries of Authority property.
G. S. 143-224(c), which authorizes the Authority to make rules,
,
regulations and adopt ordinances with respect to the use of streets,
|
drives, and parking areas on Authority premises, and relating to the |
safety and welfare of persons using the property of the Authority,
:
pre-empts the right of the Town of Morehead City to legislate by
municipal ordinance on such subjects within the geographical area
owned by the Ports Authority. VaHd ordinances of the Town of
,
Morehead City which regulate conduct other than that which the s
Legislature has given the Authority the exclusive power to control, I
as set forth above, may be apphcable to Authority premises within
the City limits.
Robert Morgan, Attorney General
Roy A. Giles, Jr.,
Staff Attorney
20 July 1971
Subject: Notaries PubUc; Fees; Form of Seal, Oath
of Office; Persons 18 Years of Age May
be Notary.
Requested by: -' Mrs. Susan Lobinger
Notary Public Officer
Governor's Office
Questions: (1) What fees may a notary charge for
notarizing documents?
-435-
(2) What information should appear on
a notary seal or stamp?
(3) If the effective date of a notary's
commission begins on a Saturday or
Sunday, may the notary take the oath of
office on Friday preceding?
(4) May a person 18 years of age hold
the office of notary pubHc?
Conclusions: (1) The fees of notaries pubhc are
created and regulated by G. S. 10-8. Tliis
statute permits a notary to charge a fee of
fifty cents for protesting nonacceptance or
nonpayment of any order, draft, note,
bond or any other thing to be protested,
and ten cents for each notice sent in
connection with the protest. For all other
services, where no fee is fixed by statute
for that service, the notary may not charge
more than twenty cents for every ninety
words. Cider Co. v. Carroll, 124 N.C. 556.
(2) We find no statutory requirement as
to what information must appear upon a
notary pubhc seal or stamp. It is customary
for the seal or stamp to contain the
person's name, county and state, and the
words "notary pubhc" so that this will
appear on the instrument notarized.
(3) G. S. 10-2 requires a notary to take
the oath before the register of deeds in the
county where the notary is to act. A notary
pubhc is a pubhc officer. State v. Knight,
169 N.C. 333. Thus, under G. S. 128-5 the
notary must take the oath of office before
acting. The notary may therefore take the
oath prior to the day his commission
becomes effective, but he would not be
^36-
eligible to act until the effective date of
the commission.
(4) Yes.
The position of notary pubHc is a public
office. Since the adoption of the
Twenty-Sixth Amendment to the U. S.
Constitution, the right of citizens of the
United States who are 18 years of age or
older to vote shall not be denied or
abridged by the United States or by any
state on account of age. Article VI,
< Section 1 of the North Carolina
Constitution of 1970, required a person to
be 21 years of age before he was eligible
to vote. The Twenty-Sixth Amendment has
the effect of changing 21 years of age tof
18 years of age. Section 6 of Article VI
^ of the State Constitution provides: "Every
qualified voter in North Carolina except as
- in this Constitution disquahfied shall be
eligible for election by the people to
office." {Emphasis added.)
The prior provision of the Constitution of 1868, Article VI,
Section 7, relating to ehgibihty to office provided that "every voter
shall be eligible to office".
Under the Constitution of 1868, every pubHc office holder, whether
elected or appointed, had to be a quahfied voter. State v. Knight,
169 N.C. 333.
Apparently under the Constitution of 1970, there are noj
qualifications which a person must possess in order to hold an|
appointive public office in North CaroHna, and the General Assembly:
would be free to specify the qualifications for any appointive office.!
The office of notary public is an appointive pubHc office and
Chapter 10 of the General Statutes does not contain any
qualifications or specify what age a person must be before he is
eligible for appointment.
-437-
'Thus, it is the opinion of this office that a person 18 years of age
may be appointed a notary pubhc if the Governor, in his discretion,
should desire to make such an appointment.
Robert Morgan, Attorney General
James F. Bullock,
' Deputy Attorney General
20 July 1971
Subject: Labor; Minimum Wage Act; Amendment to
G. S. 95-87; Part Time Employees Working
Sixteen Hours or Less per Week in
Establishment Having Three or Less Full
Time Employees; Counting Employees for
Basic Coverage Under the Minimum Wage
Act.
Requested by:
Question:
Conclusion:
Honorable Frank Crane
Commissioner of Labor
Under the 1971 Amendment to Section
95-87 of the Minimum Wage Act, shall part
time employees be counted in determining
whether the employer has four or more
persons employed as provided by G. S.
95-88?
Part time employees who work 16 hours
or less per week must be enumerated or
counted towards coverage of an
estabhshment employing four or more
persons.
Chapter 138 of the Session Laws of 1971 rewrote G. S. 95-87 so
that the same now reads as follows:
"§ 95-87. Minimum wage^ .--Every employer shall pay
-438-
!
to each of his employees wages as follows: (a) at a
rate of not less than one dollar and forty-five cents
($1.45) per hour after July 1, 1971; (b) at a rate of
not less than one dollar and sixty cents ($1.60) per
hour after July 1, 1972. This act shall not apply to
part time employees who work 16 hours or less per
week if the estabUshment where such part time
employees are employed has three or less full time
employees at any one time."
The basic coverage under the Minimum Wage Act depends on an
enumeration of employees and G. S. 95-88 reads as follows:
"§ 95-88. Certain establishments excluded.-This did
v shall not apply to any estabUshment that does not have
four or more persons employed at any one time:
Provided, the husband, wife, son, daughter or parent
of the employer shall not be enumerated in
determining the number of persons employed."
Prior to the passage of the 1971 amendment the following substitute
was proposed:
"Substitute H. B. 18 by deleting the quotation marks
at the end of line 10 and inserting the following:
"This act shall not apply to part time employees who
work sixteen (16) hours or less per week, or the
establishment with such part time employees are
employed if such estabhshment has three (3) or less
full time employees at any one time."
This proposed substitute was not accepted and the amendment was
made and passed as set forth above. The Minimum Wage Act (G. S.
95-88) excludes certain employees; that is, a husband, wife, son,
daughter, or parent, which employees cannot be counted in any
enumeration for the purpose of determining whether the
establishment has four or more employees employed at any one
time, which constitutes the basic coverage.
G. S. 95-87, as amended by the 1971 General Assembly, removes
-439- I
part time employees who work 1 6 hours or less per week if the
establishment has three or less full time employees at any one time.
jThese part time employees do not have to be paid the minimum
wage but the amendment does not remove these employees from
being counted for the purpose of determining coverage under the
Minimum Wage Law, and we are of the opinion, therefore, that
these part time employees mentioned in the amendment must be
enumerated or counted towards the coverage of an establishment
employing four or more persons. Therefore, for example, an
establishment having three regular full time employees by counting
ithe part time employees would have five employees, and the three
regular employees would be entitled to the minimum wage of $1.45
per hour. The same would be true if there were only one part time
employee wliich would make the total amount of employees four,
since the basic coverage is four or more.
Robert Morgan, Attorney General
Ralph Moody,
Deputy Attorney General
20 July 1971
Subject: Prisons and Prisoners; Hard Labor as
Punishment Prohibited; Prisoners May be
Employed.
Requested by: Senator JuHan AUsbrook
Legislative Office #1221
li Questions: (1) Does Article XI, Section 1 of the
North Carohna Constitution, as rewritten
in the new Constitution which became
effective July 1, 1971, prohibit the
General Assembly and the courts from
imposing hard labor as punishment for
crime?
(2) Does Article XI, Section 1 of the
-440-
new Constitution forbid the employment
of prisoners by the Department of
Correction pursuant to laws enacted by the
General Assembly?
Conclusions: (1) Yes.
(2) No.
Article XI, Section 1 of the prior Constitution reads as follows:
"§ 1. Punishments; convict labor; proviso .—Tho,
following punishments only shall be known to the laws
. . of this State, viz.: death, imprisonment with or
without hard labor, fines, removal from office, and
disqualification to hold and enjoy any office of honor,
, trust, or profit under this State. The foregoing
provisions for imprisonment with hard labor shall be
construed to authorize the employment of such
convict labor on pubUc works or highways, or other
labor for public benefit, and the farming out thereof,
where and in such manner as may be provided by law;
but no convict shall be farmed out who has been
sentenced on a charge of murder, manslaughter, rape,
attempt to commit rape, or arson: Provided, that no
1 convict whose labor may be farmed out shall be
punished for any failure of duty as a laborer, except
by a responsible officer of the State; but the convicts
so farmed out shall be at all times under the
supervision and control, as to their government and
discipline, of the penitentiary board or some officer
of this State."
Article XI, Section 1, as it appears in the new Constitution, read
as follows: s^ , ; ;
"§ 1. Punishments. The following punishments only
shall be known to the laws of this State: death,
imprisonment, fines, removal from office, and
disquahfication to hold and enjoy any office of honor,
'icv\ I trust, or profit under this State."
-441-
Two important omissions have been made in the new Constitution.
First, whereas the prior section authorized "imprisonment with or
without hard labor", the new section now authorizes
"imprisonment", but the words "with or without hard labor" have
been deleted.
Second: Whereas the old section stated that "imprisonment with
hard labor shall be construed to authorize the employment of such
convict labor on pubhc works on highways, or other labor for pubhc
benefit, and the farming out thereof, where and in such manner
as may be provided by law ....", the new section has deleted all
of this language.
Pursuant to the authority of the prior Constitution, the General
Assembly has adopted work on the pubhc roads as a part of the
punishment for crimes. State v. Young, 138 N.C. 571.
In State v. Nipper, 166 N.C. 272, the Court discussed the common
law punishments by which corporal punishments could be inflicted,
and in reference to Article XI, Section 1, stated: "The Constitution
of 1868 intended by the above provisions to restrict the sentence
which might be imposed by the courts upon conviction of crime
to those enumerated." The Court further stated: "While our
constitutional provision against the infliction of corporal punishment
as a part of the sentence of the courts does not directly prohibit
Its infliction in prison discipline, ...." {Emphasis added.)
The North Carolina Supreme Court has stated that the courts may
impose only such punishments as are authorized by Article XI,
Section 1, of the Constitution. State v. Cole, 241 N.C. 576.
The State Constitution is not a grant, but a Umitation or restriction
of powers on the Legislature. Yarborough v. Park Commission, 196
N.C. 284; Wells v. Housing Authority, 213 N.C. 744; Purser v.
Ledbetter, 227 N.C. 1 . Strict appHcation of rules of constitutional
construction create a presumption that a change in the law was
intended. Where a word in an amendment or re-enactment of a
Constitution is omitted, the omission should be presumed to have
been intentional. This general principle is universally appHed unless
there is something to indicate an intention of the framers of the
new Constitution to the contrary. 16 Am. Jur. 2d, Constitution,
Sec. 80, page 262.
^42-
"If the language used is clear and unambiguous, its meaning and
intent are to be ascertained from the instrument itself by construing
the language as it is written." 16 C.J.S., Constitution, Sec. 19.
The limitation contained in Article XI, Section 1 is not "Thou shalt
not", but "Thou shalt only". When the new Constitution deleted
the words "With or without hard labor", it would appear that a
further Umitation has been imposed.
Thus, it is the conclusion of this office that new Article XI, Section
1 means exactly what its clear language says: "The following
punishments only shall be known to the laws of this State: death,
imprisonment, fine, removal from office, and disqualification to hold
and enjoy any office of honor, trust, or profit under the State."
{Emphasis added.) j ^
This being true, the General Assembly has no authority to impose
"hard labor" as punishment for crime, and the courts therefore may
not impose a judgment which requires hard labor as punishment,
(Emphasis added.)
We are not unaware of Article I, Section 17, which provides:
"Slavery is forever prohibited. Involuntary servitude, except as a
punishment for crime whereof the parties have been adjudged guilty,
is forever prohibited." This is almost the same language which
appeared in Article I, Section 33 of the 1868 Constitution, as well
as the language of the Thirteenth Amendment to the U. S.
Constitution.
:|
At first glance, the view that Article XI, Section 1 abolishes hard
labor would indicate that Article I, Section 17 has been repealed
to the extent it does not prohibit involuntary servitude as
punishment for crime.
i
Amendments are usually adopted for the purpose of making ai
change; hence it is very Hkely that a conflict may arise between
an amendment and portions of a Constitution adopted at an earher
time. This may be true, as in our present Constitution, even though
it was a rewrite and revision adopted by the people all at one time,
Constitutional provisions must be harmonized whenever possible. A
-443- .
^
provision is not invalid merely because it conflicts unless the
provisions are so repugnant as to be irreconcilable. Such is not the
case here.
If inconsistent provisions cannot be completely harmonized or
reconciled, the special provision relating to a subject matter will
control the more general provision, and both will operate together,
neither working the repeal of the other, and the general provision
will be left to control in cases where the special does not apply.
Johnson v. Duke, 24 A. 2d 304; Swanson v. State, 271 N.W. 264;
People V. Western Air Lines, Inc., 268 P. 2d, 723; 16 Am. Jur.
2d, Constitutional Law, Section 69.
These rules may be applied to Article XI, Section 1 and Article
I, Section 17, and effect given to both sections, to the end that
Article I, Section 17 would read: "Involuntary servitude, except
whereof the parties have been adjudged guilty of a crime, is forever
prohibited."
Neither the Constitution of the United States nor Article I, Section
17 of the State Constitution prohibits the employment of convict
labor. Although Article XI, Section 1 of the State Constitution is
construed to prohibit the imposition of hard labor as punishment,
the General Assembly may authorize the employment of convict
labor by the Department of Correction.
In 18 C.J.S., Convicts, Section 13, we find the following: "A state
or county is entitled to a convict's labor or services. The legislature,
subject to constitutional restrictions, may authorize the employment
of convicts on pubhc works, or leave the nature of their employment
to the discretion of a board of control, and may provide for the
payment of compensation to them,"
It is within the police power of the State to provide for the
employment of convicts. Prior to the Constitution of 1868,
employment of convicts on the pubhc roads had been enacted and
sustained. State v. Young, 138 N.C. 571.
G. S. 148-26 sets forth the State pohcy on employment of prisoners
"to provide diversified employment for all able-bodied inmates of
the State prison system in work for the public benefit that will
-444-
reduce the cost of their keep while enabhng them to acquire or
retain skills and work habits needed to secure honest employment
after their release."
There is no limitation in the Constitution upon the General
Assembly's authority to carry out the above stated pohcy.
Robert Morgan, Attorney General
James F. Bullock,
Deputy Attorney General
r
23 July 1971
Subject:
Requested by:
Questions
:
Education; State-Supported Colleges and
Universities; Qualifications for In-State
Tuition; Chapter 845 of the 1971 Session
Laws ! -y-ii. '
:,:•": ' ,
Cameron West, Director
State Board of Higher Education
(1) The fourth paragraph of
N.C.G.S. 116-143 states that "Where an
individual serves as a faculty member on
a part-time basis and is enrolled at the same
time as a part-time student, a special
tuition rate not lower than the North
Carohna resident rate may be granted in
the discretion of the Board of Trustees of
the institution." Section 6 of Chapter 845
of the 1971 Session Laws, ratified
July 13, 1971, rewrote paragraph four of
N.C.G.S. 116-143 as follows: "No special
tuition rate may be granted to an individual
serving exclusively as a faculty member on
a part-time basis and who is enrolled at the
same time as a part-time student; provided,
however, that the Advisory Budget
-445-
- ' Commission is hereby authorized to
modify this provision to alleviate justifiable
budget difficulties in the affected
institutions during the 1971-73 biennium."
. Does Chapter 845 of the 1971 Session
Laws affect the validity of any contract
t^ . entered into prior to July 13, 1971, by
students and state-supported institutions of
higher education pursuant to
N.C.G.S. 116-143?
(2) Prior to the enactment of
Chapter 845 of the 1971 Session Laws, to
quaUfy for in-state tuition a legal resident
must have maintained his domicile in North
Carolina for at least six months next
preceding his enrollment or re-enrollment
in an institution of higher education in this
State. Chapter 845 of the 1971 Session
Laws extends the period of quahfication
from six months to twelve months. Is the
twelve-month requirement applicable to
students who have appHed to and have
been accepted by a state-supported
; institution prior to July 13, 1971, the
effective date of Chapter 845?
Conclusions: (1) Chapter 845 of the 1971 Session
Laws does not affect the validity of any
contract entered into prior to
July 13, 1971, where the individual has
been offered and has accepted to serve as
a faculty member on a part-time basis and
is enrolled at the same time as a part-time
student and as a part of his employment
as a part-time faculty member has been
offered a special tuition rate not lower than
the North Carolina resident rate.
(2) The eligibility of all students who
have apphed and have been accepted by
A46-
state-supported institutions of higher
education prior to July 13, 1971, shall be
determined upon the individual having
maintained his domicile in North Carohna
for at least the six months next preceding
the date of first enrollment or
re-enrollment in an institution of higher
. . education in this State. The tv^elve-month
'' requirement as provided for in
Chapter 845 of the 1971 Session Laws
does not apply to any individual who
i' applied for admission and was accepted by
a state-supported institution of higher
education prior to July 13, 1971. The
'^
, ^ student already enrolled as an in-state
. 1 student, qualifying as such by compliance
• with the six-month requirement prior to
- July 13, 1971, shall retain in-state status.
Chapter 845 of the 1971 Session Laws (hereinafter referred to as
Chapter 845) provides in Section 6 in part the following:
"No special tuition rate may be granted to an
individual serving exclusively as a faculty member on
a part-time basis and who is enrolled at the same time
as a part-time student; provided, however, that the
Advisory Budget Commission is hereby authorized to
modify this provision to alleviate justifiable budget
difficulties in the affected institutions during the
1971-73 biennium."
The above quoted portion of Chapter 845 rewrote the fourth
paragraph of N.C.G.S. 116-143 which, prior to its amendment as
set forth above, read as follows:
"Where an individual serves as a faculty member on
a part-time basis and is enrolled at the same time as
a part-time student, a special tuition rate not lower
than the North Carolina resident rate may be granted
in the discretion of the Board of Trustees of the
institution." . ,
...
447-
Prior to July 13, 1971, as provided for in N.C.G.S. 1 16-143, many
of our state-supported institutions of higher education employed
nonresident graduate students as teaching assistants and extended
to them, as one of the terms of such employment, a special tuition
rate. Such arrangements were made prior to the change in the law
for the 1971-72 academic year by way of an exchange of letters,
that is, a letter from the institution offering an individual the
opportunity to serve, at a special tuition rate not lower than the
resident rate, as a faculty member on a part-time basis while enrolled
at the same time as a part-time student followed by a letter from
that individual accepting such position.
The kind of offer and acceptance referred to above, whether it be
oral or written, would result in a vaUd and binding contract upon
the institution. Though such a contract may not be valid if entered
into subsequent to enactment of Chapter 845, the contract was valid
prior to the enactment of Chapter 845 and is binding upon the
institution. The prohibitions contained in Chapter 845 may not be
retroactively apphed in this situation.
Ordinarily, a statute will be given prospective effect only and will
not be construed to have retroactive effect unless such intent is
clearly expressed or arises by necessary implication from its terms.
Housing Authority of Durham v. Thorpe, 271 N. C. 468,
157 S. E. 2d 147. Had the General Assembly attempted to give
retroactive effect to Chapter 845, and invalidate contracts entered
into prior to the effective date of Chapter 845, such an attempt
would have been unconstitutional. The General Assembly has the
power to enact retroactive laws provided that they do not impair
the obligation of contracts or disturb vested rights. Piedmont
Memorial Hospital v. Guilford County, 221 N. C. 308,
20 S. E. 2d 332. A statute may not be given retroactive effect
where such construction would interfere with vested rights. Wilson
v. Anderson, 232 N. C. 212, 50 S. E. 2d 836,
18 A.L.R. 2d 951, petition for rehearing dismissed,
232 N. C. 521, 61 S. E. 2d 447, 18 A.L.R. 2d 959.
All contracts entered into between an institution and an individual
prior to July 13, 1971, and pursuant to N.C.G.S. 1 16-143 are valid
and enforceable.
^48-
In the classification of students as in-state or out-of-state at
state-supported institutions of higher education, the Board of
Trustees of each institution has adopted the following regulation:
"To quahfy for in-state tuition, a legal resident must
have maintained his domicile in North CaroUna for at
least the six months next preceding the date of first
enrollment or re-enrollment in an institution of higher
education in this State."
Chapter 845 changed the six months period of domicile as a
non-student to twelve months. Section 8 of Chapter 845 provides:
''In-State Residents: - To quahfy for in-state tuition,
a legal resident must have maintained his domicile in
North Carolina for at least the twelve months next
preceding the date of first enrollment or re-enrollment
in an institution of higher education in this State.
Student status in an institution of higher learning in
this State shah not constitute eUgibihty for residence
to quahfy said student for in-state tuition."
To apply the twelve-month requirement to students and prospective
students who have applied for admission and have been accepted
prior to July 13, 1971, would violate vested rights. The same
principles apphcable to contracts are apphcable here.
The twelve-month requirement as provided for in Chapter 845 of
the 1971 Session Laws does not apply to any individual who apphed
for admission at a state-supported institution of higher education
and was accepted prior to July 13, 1971. The student already
enrolled as an in-state student, quahfying as such by compliance
with the six-month requirement prior to July 13, 1971, shah retain
in-state status.
' Robert Morgan, Attorney General
Andrew A. Vanore, Jr.,
Assistant Attorney General
^49-
23 July 1971
Subject:
Requested by:
Question
:
Conclusion
:
Infants and Incompetents; Guardians;
Minors; Clerks of Superior Court;
G. S. 33-1, 33-41; Chapter 585, 1971
Session Laws (G. S. 48A-1, 48A-2).
Mr. Fred P. Parker, Jr.
Wayne County Attorney
Under the provisions of the "
1 8 Year Old
Majority Act" (Chapter 585, Session Laws
of 1971), which provides in effect that any
person 1 8 years of age or older is no longer
a minor, is a person who has attained the
age of 1 8 entitled to receive his estate from
his guardian?
In most instances, yes. However, if the
estate was set up under a court order, will,
or other legal document which provides
that the guardianship is to continue until
the ward reaches the age of 2 1 , the "
1
8
Year Old Majority Act" may not be
appUcable.
G. S. 33-1 provides, in part: "The clerks of the superior court
within their respective counties have full power, from time to time,
to take cognizance of all matters concerning orphans and their
estates and to appoint guardians in all cases of infants. ..."
North Carolina General Statutes do not define "infant" or "minor".
However, these terms are synonymous. ^^INFANT. A person within
age, not of age, or not of full age; a person under the age of 21
years; a minor. ..." ^^MINOR. An infant or person who is under
the age of legal competence. One under 21. A term derived from
the civil law, which described a person under a certain age as less
than so many years. ..." (Black's Law Dictionary, 4th Ed.)
Chapter 585, Session Laws of 1971, was ratified June 17, 1971,
and became effective July 5, 1971 , upon certification by the United
-450-
States Administrator of General Services that the legislatures of at
least three-fourths of the States had ratified an amendment to the
U. S. Constitution providing that the rights of citizens who are 18
years of age to vote shall not be denied or abridged on acount of
age. This act provides:
"§48A-1. Common law definition of 'minor'
abrogated.-The common law definition of minor
insofar as it pertains to the age of the minor is hereby
repealed and abrogated.
"§48A-2. Age of minors.-A minor is any person who
has not reached the age of 18 years."
G. S. 33-41 provides, in part: "A guardian may be required to file
such account at any time after sixty days from the ward's coming
of full age or the cessation of the guardianship;. ..."
Subject to the remainder of this paragraph, in our opinion.
Chapter 585, Session Laws of 1971, requires a clerk of superior
court to permit the filing of a final account in the guardianship
of those persons, not otherwise under a legal disabihty, who were
18 years of age or older on July 5, 1971, or who thereafter attain
the age of 18. In those instances where a guardian was appointed
by the clerk pursuant to a court order or pursuant to a will or
other legal document, we suggest the clerk review the language of
such order or document. Should it use the phrase "21 years of age"
rather than "infant" or "minor", questions may arise as to the
applicability of Chapter 585. If the document involved is a court
judgment, it may be appropriate for a motion in the cause to be
made to revise the judgment.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
s^ ' Assistant Attorney General
27 July 1971
Subject: , ,. Sand Dune Protection; Authority of a
451-
Requested by:
Questions:
Conclusions:
County to Protect the Sand Dunes Along
the Outer Banks In the Entire County,
Including Any Municipahty Located
Therein.
Mr. L. Patten Mason
Carteret County Attorney
(1) Does the board of county
commissioners under Article 3,
Chapter 104B of the General Statutes of
North Carohna, have the authority to
protect the sand dunes along the Outer
Banks within the corporate hmits of any
municipahty along the Outer Banks located
in that county?
(2) Does the Sand Dune Protection
Ordinance of Carteret County sufficiently
incorporate the duties, responsibihties, and
provisions of Article 3, Chapter 104B of
the General Statutes, so as to be apphcable
in any municipahty located along the Outer
Banks of Carteret County?
(1) The North Carolina General
Assembly intended by the enactment of
Article 3, Chapter 104B of the General
Statutes of North Carolina, to protect the
sand dunes along the Outer Banks of North
Carohna from destruction and damage; and
the Legislature therein authorized the
boards of county commissioners to enforce
the statute in the entire county along the
Outer Banks, including any municipahties
located therein.
(2) The Sand Dune Protection
Ordinance of Carteret County bases its
authority on and incorporates Article 3,
Chapter 104B of the General Statutes of
-452-
North Carolina, and, therefore, is
enforceable in any municipality located
along the Outer Banks of Carteret County,
North Carolina.
Article 3, Chapter 104B of the General Statutes of North Carolina,
is the sand dune protection law. The North Carohna General
Assembly's findings and intent relative to protection of sand dunes
along the Outer Banks are set out in G. S. 104B-3 as follows:
' "§104B-3. Legislative findings.-It is hereby
determined and declared as a matter of legislative
finding that the area of the State of North Carohna
lying along the Atlantic Ocean front, and in particular
the outer banks of this State as hereinafter defined,
is a major asset to the economy of the entire State
and as such should be protected and preserved. This
area is wholly or in part protected from actions of
the Atlantic Ocean and storms thereon by a system
of natural or constructed dunes providing a protective
barrier for adjacent lands and inland waters and land
against the actions of sand, wind and water. Certain
persons, firms, and corporations have from time to
time modified or destroyed the effectiveness of such
protective barriers in the process of developing the
water front for various purposes. These practices
constitute serious threats to the safety of adjacent
properties and to pubhc highways, as well as to the
value and taxable basis of such adjacent properties,
and they constitute a real danger to the health, safety,
and welfare of persons living, visiting or sojourning in
such area. It is therefore deemed necessary to protect
the area and especially the system of protective barrier
j
dunes as hereinafter provided." I
1
Thus, the General Assembly found that the Outer Banks of North
Carolina are a major asset to the economy of the State; that they
afford protection to persons and property; that the area is
susceptible to damage from wind and water; and that certain persons,
firms and corporations have destroyed the protective barrier afforded
by the sand dunes. Finally, the Legislature indicated that the intent!
453-
of the law is to protect the sand dunes along the Outer Banks from
destruction or damage.
The Outer Banks are defined in G. S. 104B-13:
"The term 'outer banks of this State' shall be
construed to mean all of that part of North Carolina
which is separated from the mainland by a body of
water, such as an inlet or sound, and which is in part
bounded by the Atlantic Ocean and in New Hanover,
Onslow, and Brunswick counties this shall include the
land areas lying between the Intra-Coastal Waterway
and the Atlantic Ocean." {Emphasis supplied.)
The General Assembly stated that the Outer Banks shall include
"all of that part of North Carolina" bordering on the Atlantic Ocean
and made no distinction between municipaUties and counties. It is
logical to assume that the General Assembly intended by the law
to protect all of the Outer Banks and not just those areas controlled
by county governments. If the municipaUties located on the Outer
Banks were not included, the purpose of the act would be defeated
in that large areas of sand dunes on the Outer Banks would be
unprotected. The General Assembly has not deemed it necessary
to enact a law appUcable to municipaUties which would give them
similar authority to act nor is there such authority included within
the municipal powers enumerated in G. S. 160-200. It is clearly
indicated that the General Assembly intended to give the counties
the authority to protect all of the Outer Banks within their
respective boundaries.
The Sand Dune Protection Ordinance of Carteret County sets out
in Section 1-3:
''AUTHORITY, Chapter 104B, Article 3,
Section 104B-3 et seq. of the General Statutes of
North Carolina authorize(s) and empowers the Board
of Commissioners of Carteret County to regulate the
protection of natural and constructed dunes along the
outer banks of Carteret County."
I
The authority by which Carteret County obtains its power and
^54-
jurisdiction is included in the ordinance, and the ordinance further i
incorporates the duties, responsibiUties and provisions of Article 3,
Chapter 104B of the General Statutes of North Carolina. Thus, the
authority granted by the State statute to Carteret County would
include the authority to enforce the ordinance within the
municipalities along the Outer Banks located in Carteret County.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
27 July 1971
Subject:
Requested by:
Question:
Conclusion:
Taxation; Ad Valorem; Exemptions; Real
Property Belonging to Nonprofit Medical
Foundation; G. S. 105-278 (Formerly
G. S. 105-296 -See Chapter 806, Session
Laws of 1971, New Machinery Act)
Mr. H. L. Riddle, Jr.
Burke County Attorney
Is a dwelling house owned by a nonprofit
medical foundation, which house is held to
assure incoming doctors of a place to live
and which is rented by the foundation to
doctors and their families, exempt from
county ad valorem taxes?
A dwelling house owned by a nonprofit
medical foundation, which house is held to
assure incoming doctors of a place to live
and which is rented by the foundation to
doctors and their famihes, is not exempt
from county ad valorem taxes.
Under the Machinery Act, Chapter 806, Session Laws of 1971, all
property, real and personal, within the jurisdiction of the State is
^55-
subject to taxation unless it is excluded from the tax base or
exempted from taxation by a statute of statewide application
enacted pursuant to Article V, Section 2(3) of the North Carolina
Constitutuion. G. S. 105-274. The above property is not classified
and excluded from the tax base under applicable sections of the
General Statutes so classifying and excluding property from taxation
(G. S. 105-275, G. S. 105-276 and G. S. 105-277), and the above
property does not appear to be exempted from taxation under
G. S. 105-278, which provides that certain enumerated real
property "and no other" shall be exempted.
The subsection of G. S. 105-278 having closest application appears
to be subsection (6) which provides an exemption for "buildings,
with the land actually occupied, belonging to . . . any benevolent,
patriotic, historical, or charitable association used exclusively for
lodge purposes by said societies or association, . . . ." Even if
a nonprofit medical foundation or trust estabUshed for the main
purpose of making doctors available to an area, qualifies as a
"charitable association", the rental of a dwelling owned by such
foundation to a doctor does not appear to be a use of such property
"exclusively for lodge purposes", or for "the purposes for which
the association was organized, Le^ charitable purposes", as the words
"lodge purposes" have been interpreted to mean by this office in
the past. O.A.G. to Harley B. Gaston, dated 25 March 1960; O.A.G.
to James R. Hood, dated 28 August 1969. It is not the character
of the association owning the property but rather the purpose for
which it is held which is determinative. Sir Walter Lodge vs. Swain,
:217 N. C. 632, 9 SE 2d 365. In Sparrow vs. Beaufort County,
'221 N. C. 222, 19 SE 2d 861, the Supreme Court stated with
respect to property held for educational, charitable or reUgious
purposes as follows:
"Property held for any of these purposes is supposed
to be withdrawn from the competitive field of
commercial activity, .... But when it is thrust into
the business Hfe of the community it loses its sheltered
place, regardless of the character of its owner, for it
is held for profit or gain. ..." (at p. 224)
Exemption from taxation is never presumed and statutes providing
exemptions are to be strictly construed. Strong, North Carolina
-456-
Index 2d, Vol. 7, Taxation, p.
258 N. C. 749, 129 SE 2d 465;
229 N. C. 313, 49 SE 2d 754.
128; Sale v.
Henderson
Johnson,
V. Gill,
27 July 1971
Subject:
Requested by:
Question
:
Conclusion:
Robert Morgan, Attorney General
I. Beverly Lake, Jr.,
Assistant Attorney General
Mental Health; Courts; Responsibility for
Transporting Mental or Inebriate Patients to
Hospitals ^
Mr. Charles M. Johnson
Clerk of Superior Court
Montgomery County
Who has the responsibihty of transporting
judicially admitted mental or inebriate patients
to state hospitals?
Responsibility for transporting a judicially
admitted mental or inebriate patient to a hospital
is upon the sheriff when ordered to do so by;
the clerk. If the order does not specify who shall
take the patient to the hospital, a friend of the
patient or a member of the patients's family may
transport the patient to the hospital if he is
content to be so transported.
Under various provisions of Chapter 122 of the General Statutes,
judicial commitments for mental or inebriate patients are made by
the clerk. In conducting an examination of an alleged mentally ill
or inebriate person and, if warranted, committing to a propei
hospital, the clerk acts in a judicial capacity. See Jarman v. Offutt.}
239 N. C. 468, 80 SE 2d 248 (1954).
-A51-
In the case of Southern Railway Company v. Mecklenburg County,
et al, 231 N. C. 148, 56 SE 2d 438 (1949), the court said that
the sheriff is the chief law enforcement officer of the county.
Therefore, it is his duty to transport judicially committed inebriate
or mental patients when ordered to do so by the clerk.
No provision of law has been found which prevents the
transportation of the patient by a friend or a member of his family
if the clerk's order does not require the sheriff to do so and the
patient is content to be so transported.
Robert Morgan, Attorney General
Parks H. Icenhour,
Assistant Attorney General
4 August 1971
Subject: Pubhc Officers & Employees; Holding
Over; State Board of Assessment;
G. S. 105-288
Requested by:
Question:
Mr. Thomas W. Alexander
Chairman, State Board of Assessment
Do those persons who were appointed
members of the State Board of Assessment
pursuant to former G. S. 105-273
presently continue as members of the
Board although the statute has been
rewritten and renumbered, and the
appointment of new members provided
for?
Conclusion: Yes. The Constitution and apphcable
statutes all provide that public officers
continue to serve until their successors are
appointed and quahfied, and there is
nothing to indicate that the General
^58-
Assembly intended to abolish the formeij
offices or to create a new Board to replaceJSiS
the former one.
The Chairman of the State Board of Assessment has inquirec
whether those persons who were appointed members of the Board
pursuant to former G. S. 105-273 continue as members of the
Board, although the statute has been rewritten and renumbered as
a part of the recent overall revision of the Machinery Act. (C. 806.
S.L. 1971.) . ;
i
Former G. S. 105-273, under which the present five members o^^
the Board were appointed, provided:
"(a) There is hereby created a State Board of
Assessment of five members with all the powers and
duties prescribed by law. On July 1, 1967, and
quadrennially thereafter, the Governor, Lieutenant
Governor and Speaker of the North Carohna House
of Representatives shall each appoint one member to
serve for four years and until his successor is appointed
and quahfied. On July 1, 1967, the Governor shall
appoint one additional member to serve for two years
and until his successor is appointed and qualified ; and
\ on July 1, 1969, and quadrennially thereafter, the
Governor shall appoint a successor to the original one
additional member to serve for four years and until
his successor is appointed and quahfied. The Director
of Tax Research shall serve ex officio as the fifth
member of the Board. ..."
Under that act, three members were appointed as of 1 July 1967,
to serve "for four years and until his successor is appointed and
qualified"; and one was appointed as of 1 July 1967 to serve "for
two years and until his successor is appointed and quahfied",]
thereafter to be appointed quadrennially; and the fifth member
serves ex officio. Thus, the terms of three members would ordinarily
have expired on 1 July 1971, and terms of the fourth member
would have expired on 1 July 1973, with their successors appointed
to take office on those dates.
-459- ^:
[owever, effective 1 July 1971, former G. S. 105-273, now
I. S. 105-288, was rewritten to provide in part as follows:
UUi
loa
ftl
8fl
"(b) The State Board of Assessment shall be composed
of five members chosen as provided in subdivisions (b)
(1) through (b) (6), below.
(1) Members of the Board serving on the effective date
of this act shall serve until their current terms expire
and their successors are appointed and quahfied.
(2) On July 1, 1971, and quadrennially thereafter,
the Governor, the Lieutenant Governor, and the
Speaker of the North Carolina House of
Representatives shall each appoint one member to
serve for four years and until his successor is appointed
and quahfied.
(3) On July 1, 1973, and quadrennially thereafter,
the Governor shall appoint a member to fill the single
term expiring on that date to serve for four years and
until his successor is appointed and quahfied.
(4) The Director of the Department of Tax Research
shall serve ex officio as a member of the Board. ..."
Jo appointments have yet been made under the new statute, and
tie Chairman has expressed concern that the persons who were
lembers of the Board before the effective date of the new act may
e without authority to function as the State Board of Assessment.
/e conclude that such is not the case.
/hen the authors of new G. S. 105-288 provided that "members
r the Board serving on the effective date of this act shall serve
ntil their current terms expire and until their successors are
ppointed and quahfied", they were clearly referring to those
'ersons who had been appointed under former G. S. 105-273. This
onclusion is confirmed, we believe, by the fact that the fourth
lember to be appointed under G. S. 105-288 is not to be
ppointed until 1 July 1973, the date on which the term of the
ourth member appointed under former G. S. 105-273 was
-460-
scheduled to expire.
There is nothing in the new statute to suggest that the General!
Assembly intended to aboUsh the former offices or to create anf
entirely new Board to replace the former Board.
Thus, we conclude that those members appointed under former
G. S. 105-273 continue to be members of the present State Board
of Assessment, in the case of three of their number, until their
successors are appointed and quaUfied, and in the case of the fourth,
until 1 July 1973 and until his successor is appointed and quahfied.i
In addition to being the clear intention of the statute,
G. S. 105-288, such a result is specifically authorized under our
Constitution: "In the absence of any contrary provision, all officers
in this State, whether appointed or elected, shall hold their positions
until other appointments are made or, if the offices are elective,
until their successors are chosen and quahfied." (See also:;
G. S. \28-7 ; Hedgpeth v. Allen, 220 N. C. 528 (\94\); Freeman
V. Commissioners, 217 N. C. 209 (1940)).
The purpose of such a provision is "to prevent a hiatus in the
government pending the time when a successor may be chosen and
inducted into office." 43 Am. Jur., PubHc Officers, § 164.
' Robert Morgan, Attorney General
/ Myron C. Banks,
... .
'
Assistant Attorney General
4 August 1971
'.4 ;
Subject:
Requested by:
Infants and Incompetents; Guardians; Joint!
Savings Accounts; Right of Guardian tq
Remove Funds from Savings Account ini
Which Guardian's Ward has a Contractualj
Right to Withdraw Funds.
Mr. W. C. York
Savings and Loan Supervisor
Department of Insurance
A6\-
^estion: Where a husband and wife have had a joint
savings account in a savings and loan
association with a right in either to
• withdraw all or part of the funds in the
account, the wife becomes incompetent
and has a guardian appointed for her, does
the guardian have authority to withdraw all
of the funds from the joint savings
account?
i^onclusion: - The guardian of the incompetent wife can
withdraw from the joint account only such
funds as are necessary for the needs of the
incompetent. It is suggested that the
decision as to the needs of the incompetent
should be made by the clerk of superior
court, after notice to the husband and after
hearing and the clerk's order forwarded to
the savings and loan association where the
joint account is maintained.
t should be noted initially that the right of survivorship is not
nvolved since neither husband nor wife is deceased.
ji'here appeared to be no appellate court decisions in this State
'leciding or discussing this question, nor are there any North Carolina
tatutes in point.
lusband and wife executed the following contractual agreement
v'ith a savings and loan association by signing a membership card
i^hich contained the following language: "The undersigned hereby
Igree with each other that the shares in association
>sued or standing in the name of us, whose names are signed below,
ither now or hereafter, and whether represented by certificates or
ccounts, are and shall be for the use and benefit of each and all
»f us as joint tenants with the right of survivorship and not as tenants
n common; and the said association is hereby authorized and
mpowered to pay from time to time, any part or all of the
withdrawal value of said shares or accounts to any or either of the
indersigned upon receipts signed by any or either one of us, or
ipon endorsement of any certificates for any part or all of said
-462-
shares by any or either of us."
G. S. 33-20 provides: "Every guardian shall take possession, for the
use of the ward, of all his estate, and may bring all necessary action
therefor.
"
"Assuming that the joint account of one who becomes incompetent
is not required to be broken up or is not acquired, under the existing
circumstances and law, by the other joint depositor, it is the general
rule that the guardian of the incompetent may withdraw from the
account only such funds as are necessary for the needs of the
incompetent, and acquires no title or general rights of election with
reference to the property." 62 A.L.R. 2d 1093, citing Howard v.
Imes, 265 Ala. 298, 90 So. 2d 818 (1956); Re Griffith, 33
Del. Ch. 387, 93 A2d 920 (1953); Johnson v. Nourse,
258 Mass. 417, 155 N.E. 457 (1927); Coolidge v. Brown,
286 Mass. 504, 190 N.E. 723 (1934); Drain v. Brookline Sav.
Bank, 327 Mass. 435, 99 N.E. 2d 160 (1951); Boehmer v.
Boehmer, 264 Wis. 15, 58 N.W. 2d 411 (1953).
In Howard v. Imes, supra, "The court, applying the general rule
that a guardian cannot exercise a purely personal elective right of
his ward, stated that it seemed clear that an act which required
the exercise of the personal right of the ward could not be performed
by the guardian, and that the making of periodic withdrawals for
the care and maintenance of the ward would constitute ministerial
acts, within the authority of the guardian, but that the termination
of the joint account and withdrawal of all the funds was a personal
right."
G. S. 33-39 requires that guardians file annual accounts with the
clerk of superior court and that the clerk carefully audit this account
and, if found correct, approve it. While there is no specific statutory/
procedure for the clerk to hear the claims of a guardian with respect
to the need of expending funds in a joint account for his ward,
it is suggested that under the clerk's general authority to supervise
the acts of guardians, the clerk has the authority to hold a hearing!
after notice to the other persons who own an interest in the joint
account, with the incompetent and to determine whether or not
the guardian is justified in spending a portion of the joint account!
of the ward's benefit. The clerk's decision should be forwarded tc
-463-
I
the institution where the joint account is maintained.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
4 August 1971
Subject:
Requested by:
Question:
Pubhc Officers & Employees; State
Employees; Workmen's Compensation Act;
Travel by Private Plane
Mr. W. P. Garris
Controller
State Highway Commission
Is a State employee, who is duly authorized
to travel by private plane on official State
business, entitled to receive the same
workmen's compensation benefits when so
travehng as he would otherwise be entitled
to when utilizing a privately owned
automobile?
Yes. A State employee is entitled to receive
the same workmen's compensation benefits
while traveling in a privately owned plane
on State business, when duly authorized to
do so, as he is entitled to receive while
travehng in a privately owned automobile.
The North Carolina Supreme Court in the case of Galloway v.
Department of Motor Vehicles, 231 N. C. 447, upheld a recovery
under the Workmen's Compensation Act for the injury and death
of two highway patrolmen who were using a private aircraft in the
performance of their duties. The Court in allowing recovery, stated
that there is nothing novel or unusual in the use of an airplane
for any purpose for which it is suitable.
Conclusion:
A6A-
An employee is entitled to benefits for injury or disability which
arise out of and in the course of his employment. Injuries which
arise out of and in the course of employment are those which occur
when the employee is engaged in some activity or duty which he
is authorized to undertake and which is calculated to further,
directly or indirectly, the employer's business. Clark v. Burton Lines,
Inc., 272 N.C. 433. This includes injuries suffered while travehng.
Martin v. Georgia-Pacific Corp., 5 N.C. App. 37. The method of
travel is not determinative of the benefits under the Workmen's
Compensation Act. State employees are treated the same under the
Workmen's Compensation Act as other employees engaged by private
enterprise. G. S. 97-2. Therefore, when a State employee is duly
authorized to travel by private plane, he is entitled to the same
benefits as an employee is entitled to when travehng in a privately
owned automobile. i
Robert Morgan, Attorney General
Eugene A. Smith,
- . Assistant Attorney General
6 August 1971
Subject: Infants & Incompetents; Minors; Public Officers
and Employees; Clerks of Superior Court;
Sheriffs; Issuance of Permit to Purchase Weapon
to 18, 19 and 20 Year Old Persons; G. S. 48A-1,
48A-2; G. S. 14-402, e^ se^. ,
Requested by:
Question
:
Mr. Isaac T. Avery, Jr.
Iredell County Attorney
Conclusion:
Since enactment of the "18 year old majority
act" (G. S. 48A-1, et seq.), does North Carohna
law prohibit a clerk of superior court or sheriff,
as the case may be, from issuing a so-called i
"pistol permit" to a person 18 years old or older?
No. However, before issuance, the issuing officer
-465- . .
should fully satisfy himself that the appHcant
requires the weapon for protection of the home.
Chapter 585, Session Laws of 1971, became effective July 5, 1971.
The Act provides as follows:
"§48A-1. Common law definition of 'minor'
abrogated -1)^0, common law definition of minor
insofar as it pertains to the age of the minor is hereby
repealed and abrogated.
"§48A-2. Age of minors.-k minor is any person who
has not reached the age of 18 years."
In some counties, the clerk of superior court issues so-called "pistol
permits"; in other counties, the sheriff. See Articles 52A and 53
I of Chapter 14 of the General Statutes. These statutes do not
; mention any quahfication which the appUcant has to have other
I than "good moral character" and that the weapon is "for protection
:; of the home." G. S. 14-404 and 14-409.3. The permit may be
i issued to "any person ... in any such county. ..." See
G. S. 14-403 and 14-409.2.
i In our opinion, North Carolina law does not prohibit a person 18
years or older from receiving a permit. The issuing official should
i satisfy himself that the weapon is for protection of the home. See
G. S. 14-404 and 14-409.3.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
6 August 1971
\ Subject: Criminal Law and Procedure;
G. S. 14-269.2; Education; School Law,
Generally; Possession of Weapons by
' Faculty Members of Schools in Homes of
A66-
Faculty Members Located on School
Property.
Requested by: Mr. Prit chard C. Smith, Director
Traffic, Safety and Security
Western Carolina University
Question: Is it a violation of G. S. 14-269.2, which
prohibits the possession of certain weapons
on school property, for a faculty member
of the school to have a shotgun, rifle or
pistol in his home, the home being owned
by and located on property of a pubhc or
private educational institution?
Conclusion: No.
G. S. 14-269.2, enacted as Chapter 241 by the 1971 Session of
the General Assembly, provides in part: "It shall be unlawful for
any person to possess, or carry, whether openly or concealed, any
gun, rifle, pistol, ... or any other weapon of hke kind, not used
solely for instructional or school sanctioned ceremonial purposes,
in any pubUc or private school building or bus, on any pubhc or
private school campus, grounds, recreation area, athletic field, or
other property owned, used or operated by any board of education,
school, college, or university board of trustees or directors for the
administration of any public or private educational institution. . .
."
{Emphasis added.)
It is a commonly accepted rule of statutory construction that "...
statutes imposing a penalty, or creating criminal offenses, must be
strictly construed." Strong, N. C. Index 2d, Statutes, sec. 5, citing
numerous decisions of the North Carolina Supreme Court.
G. S. 14-269.2 does not specifically list buildings or school property
used for private dwelhngs.
A companion statute, G. S. 14-269, prohibits, with exceptions not
pertinent here, the carrying of certain weapons concealed about
one's person "except when on his own premises". There is no
indication in G. S. 14-269.2 to change this provision of
G. S. 14-269. Furthermore, under the law of this State, a person
-467- ii
has the right to defend himself in his home, State vs. Pennell,
232 N. C. 573, 61 S.E. 2d 593, and his family, State vs. Hodges,
255 N. C. 566, 122 N. C. S.E. 2d 197.
Li 1902 the North Carolina Supreme Court in State vs. Goode,
130 N. C. 651 at page 654, quoted with approval Sir Edward
Coke's famous statement "A man's house is his castle". All
indications are that this statement is still the law in this State. In
our opinion, G. S. 14-269.2 does not prohibit the possession of
a shotgun, rifle or pistol in the home of a faculty member who
lives in a home owned by and located on property of a pubUc or
private educational institution.
Robert Morgan, Attorney General
Millard R. Rich, Jr.,
Assistant Attorney General
6 August 1971
Subject:
Requested by:
Question
:
Conclusion:
Agriculture; Public Records, Compulsory
Meat Inspection Act; G. S. 132-1,
106-549.5, et se£.
Mr. John L. Reitzel
Assistant Commissioner of
Agriculture
Are records made by State employees of
a meat packing plant which is under State
inspection "public records" and thus
subject to inspection and copying by the
pubhc?
Such records are "pubHc records" if they
were made and received pursuant to law
by the Department of Agriculture in the
transaction of public business.
^68-
Recently members of the press have asked the Department of
Agriculture to open for inspection records of the Department
received in Raleigh from State employees who are inspectors of meat
packing plants which plants are subject to State inspection pursuant
to Articles 49B and 49C of Chapter 106 of the General Statutes
(the Compulsory Meat Inspection Act). These records typically
report on the degree of compUance by individual packing plants
with the sanitation and other technical requirements of the
Compulsory Meat Inspection Act. The records reflect, inter alia,
physical conditions observed